DPP v XG

Case [2023] VSC 127 17 March 2023

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0034

Between:
DIRECTOR OF PUBLIC PROSECUTIONS
-and-
XG	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2023
DATE OF SENTENCE:	17 March 2023
CASE MAY BE CITED AS:	DPP v XG
MEDIUM NEUTRAL CITATION:	[2023] VSC 127

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CRIMINAL LAW — Sentence — Offence of contravening supervision order by using methylamphetamine, once — Accused, without employment, feeling hopeless and frustrated at time of offending — No evidence accused was, or believed he would be, rendered dangerous in slightest by use of methylamphetamine — Accused served entirety of total effective sentence for index offence giving rise to supervision order, without parole — Accused in community subject to supervision order for only short period — Accused recently contravened interim supervision order in very similar way and sentenced to 14 days’ imprisonment — Accused released from previous sentence only two-and-a-half weeks before committing current contravention — Accused held in custody on prior contravention charge for 28 days before sentence, thereby leaving 14 days of “Renzella time” — Accused held in custody for 17 days on current contravention charge — Importance of specific deterrence, general deterrence, community protection, just punishment and rehabilitation — Low moral culpability, notwithstanding recent contravention and sentence — Whether imprisonment necessary — Whether open to convict and discharge accused — Whether accused punished enough, and other sentencing purposes met, by convicting and discharging, recognising Renzella time — Parsimony — Convicted and discharged — Serious Offenders Act 2018 (Vic), ss 1, 169, 174 & 229; Sentencing Act 1991 (Vic), ss 5, 73 & 113; R v Renzella [1997] 2 VR 88.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K Brown	Abbey Hogan, Solicitor for Public Prosecutions
For the Accused	Ms J Swiney	Chris McLennan & Co

HIS HONOUR:

Charge; consent to summary jurisdiction; plea of guilty

In this Court, XG[1] has accepted summary jurisdiction[2] in respect of a charge that he contravened his supervision order, contrary to s 169 of the Serious Offenders Act 2018 (Vic). He has pleaded guilty to that charge.
[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.
[2]See Serious Offenders Act 2018 (Vic), s 174.

The contravention is constituted by his using methylamphetamine in breach of condition 6.6 of his supervision order, which provides that he:

must not use or possess prohibited drugs, including synthetic drugs, obtain drugs unlawfully, or abuse drugs of any kind.

As I understand it, it is alleged that he must have used the drug on or about 27 February 2023.

The final supervision order he breached was imposed by Beale J on 2 February this year — so about seven weeks ago.

A charge of using a drug of dependence contrary to s 75 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) was withdrawn and, as…

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 [2023] VSC 127
Case: [2023] VSC 127
Decision Date: 17 March 2023

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions v XG, the defendant was convicted of contravening a supervision order by using methylamphetamine. The case was heard in the County Court of Victoria. The central issue for the court was whether to impose a custodial sentence on the defendant, or if it was appropriate to convict and discharge the defendant, taking into account the time already spent in custody and the principles of specific deterrence, general deterrence, community protection, just punishment, and rehabilitation.

The court considered the defendant's background and circumstances at the time of the offence. It was noted that the defendant was unemployed and feeling hopeless and frustrated, which may have contributed to the contravention of the supervision order. However, there was no evidence to suggest that the defendant was, or believed he would be, rendered dangerous by the use of methylamphetamine. Additionally, the defendant had already served the entirety of the total effective sentence for the index offence, without parole, and had only been in the community under supervision for a short period before the current contravention. The court also acknowledged the defendant's recent contravention of an interim supervision order in a similar manner, for which he had been sentenced to 14 days’ imprisonment. The defendant was released from the previous sentence only two-and-a-half weeks before committing the current contravention, and had been held in custody for 28 days on the prior contravention charge, leaving 14 days of "Renzella time". On the current contravention charge, the defendant had been held in custody for 17 days.

After considering the relevant factors and principles, the court determined that the defendant's moral culpability was low, despite the recent contravention and sentence. The court found that imprisonment was not necessary, and it was open to convict and discharge the defendant. The court recognised the time already spent in custody, and concluded that the defendant had been sufficiently punished and that the other sentencing purposes had been met by convicting and discharging the defendant, taking into account the "Renzella time". The court also emphasised the importance of parsimony in sentencing. Consequently, the defendant was convicted and discharged, with the court considering the seriousness of the offender under the Serious Offenders Act 2018 (Vic), and the provisions of the Sentencing Act 1991 (Vic), and the principles established in R v Renzella [1997] 2 VR 88.

Orders