DPP v XG
[2023] VSC 127
•17 March 2023
| 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 I indicated, and reiterate, is struck out and, if necessary, permanently stayed. That charge was constituted by the same act of using methylamphetamine concerning the contravention charge.
A very relevant prior conviction
As has been explained this morning, XG has done essentially the same thing before. On 10 February, he pleaded guilty to a charge of contravening the equivalent condition of an interim supervision order made on 21 October 2022 by using methylamphetamine between 7 and 10 January this year. Justice Beale sentenced XG to 14 days’ imprisonment. He had in fact spent 28 days in custody at the time of sentence. He was released from custody on that day to the residence at which he lives pursuant to the conditions of the supervision order.
Circumstances of offending
The current offence arose in these circumstances. On 27 February, XG’s Corrections Victoria specialist case manager formed reasonable grounds for suspecting that he had used drugs. This was because of his presentation during supervision, and because of notification of an unauthorised visitor to the residence the day before. The case manager directed XG to undergo urinalysis. He complied and attended Dorevitch Pathology in Fairfield the same day.
On 1 March, the urinalysis returned a positive result for: first, methylamphetamine greater than 2,000 micrograms per litre; second, amphetamine at the same rate; and third, buprenorphine.
XG had, and has, a prescription for buprenorphine. Further, it is common, it was said, for amphetamine to appear in the body as a by-product of the metabolization of methylamphetamine. The Director does not allege that XG used any prohibited drug other than methylamphetamine. Nor is it alleged that he used methylamphetamine on more than one occasion.
On 1 March, officers from Victoria Police’s Supervision Order Specialist Response Unit attended XG’s residential address, arrested him, and conducted a search under s 229 of the Serious Offenders Act. No items of interest to Victoria Police were found during the search, and nothing was seized.
XG was taken to Heidelberg Police Station, where he declined an interview. However, he did convey to police the following things. First, he takes drugs to assist with back pain. Second, he takes them because he hates where he resides, and because he does not have a job. Third, he wanted to be arrested. He had planned to walk out of his address if he did not get arrested.
Time spent in custody
XG was brought before the Bail and Remand Court on 1 March, and remanded to appear before this court on 6 March. I am not sure why, but it is now 17 March before the matter has been heard.
Surprisingly, in my view, he is still in custody to this day. Thus, as of and including today, which is St Patrick’s Day, XG has been in custody on this charge for a total of 17 days.
Further, he spent 14 days of what might be called “dead time”, or “Renzella time”,[3] in custody on the previous charge of the same kind. This is because he spent 28 days in custody on that charge but was sentenced to 14 days’ imprisonment.
[3]See R v Renzella [1997] 2 VR 88.
Maximum penalty
The offence of contravening a supervision order is punishable by a maximum penalty of five years’ imprisonment. However, if a contravention of a supervision order is heard and determined summarily, as here, the maximum term of imprisonment to which this Court may sentence XG is two years.[4]
[4]See Serious Offenders Act 2018 (Vic), s 174(4); Sentencing Act 1991 (Vic), s 113(1).
Prior convictions
XG was born in May 1978 and is now aged 44. He has an extensive criminal history.
By far the most serious of his prior offending concerns the index offending of intentionally causing serious injury and other offences for which he was sentenced in 2013 by Beach J to a total effective sentence of ten years and three months’ imprisonment, with a non-parole period of seven years and three months.
As Beale J later explained, that offending involved XG, along with three co-accused, tying up and torturing the victim throughout the night of 9 October 2012 and into the early hours of the next day. The torture included: cutting, stabbing and slicing the victim with a razor blade, knife and scissors; carving the word “pedo” onto his forehead and the words “dog” and “rat” onto his back; putting cigarette butts out on him; choking him to the point of unconsciousness; smashing a vase over his head; kicking him in the head; burning his hair and skin; and hitting his toes with a screwdriver.
From 1996 to 2011, between the ages of 18 and 33, XG accumulated numerous convictions for offences ranging from dishonesty offences to trafficking, possessing and using heroin, assaults, affray, and criminal damage. Sentences imposed on him for those offences ranged from fines to community-based orders, wholly suspended sentences, partly suspended sentences, short straight prison terms, and an immediate term of imprisonment with a non-parole period. He breached some of those non-custodial orders.
Whilst serving a sentence for the index offence, in 2013, XG was also sentenced to an aggregate sentence of 12 months’ imprisonment, concurrent with the longer (ten-plus-years) sentence, for offences of affray, recklessly causing injury, dishonesty offences and a driving offence.
XG’s most recent prior conviction is for the earlier contravention of a condition of his interim supervision order, heard and determined on 10 February — that is, only 17 days before the present offence must have been committed.
Director’s submissions
Ms Brown, who appeared for the Director of Public Prosecutions on this matter, made very helpful submissions. She submitted that a term of imprisonment is warranted. On further discussion, it became apparent that, by “warranted”, she meant imprisonment was demanded, necessary, required.
It is said that the contravention of a supervision order is a serious matter, as demonstrated by, amongst other things, the penalties such contraventions attract under the Serious Offenders Act. The primary purpose of the Act is to provide for the enhanced protection of the community.[5] It was submitted that breaches of supervision orders undermine the effectiveness of the statutory scheme. In this regard, Ms Brown referred to the remarks of Williams J in Acting Secretary to the Department of Justice v McKane, where her Honour said this in respect of the predecessor to the current Act which at that time concerned only serious sex offenders:[6]
It is essential to the effectiveness of the statutory scheme that offenders subject to supervision orders be aware of the significance of their obligations under the conditions of those orders and the seriousness with which breaches will be viewed by the court.
[5]Serious Offenders Act 2018 (Vic), s 1(a).
[6]Acting Secretary to the Department of Justice v McKane [2012] VSC 459 at [21].
It was submitted that, for those reasons, general deterrence assumes an important role in sentencing.
It was also pointed out, fairly, that there is a line of authorities that indicates that, where supervision order contraventions are drug-related, repeated contraventions are ordinarily required before even a short period of imprisonment is appropriate. In this regard, Ms Brown referred to Elliott J’s remarks in DPP v SM[7] and those of Taylor J in R v TA.[8]
[7]DPP v SM [2019] VSC 466.
[8]R v TA [2021] VSC 479.
It was submitted that the index offending is also broadly relevant, in that it was closely linked to XG’s use of illicit drugs and forms the foundation of the supervision order. Community protection, therefore, it was said, also assumes a particularly important role in sentencing.
Ms Brown also properly emphasised that this is XG’s second breach of a supervision order, whether interim or final, by using prohibited drugs, specifically methylamphetamine. Further, the two contraventions occurred close in time to one another, and soon after XG’s release from custody. In those circumstances, it was submitted specific deterrence looms large.
On the other hand, Mr Brown accepted that XG pleaded guilty at a very early stage — indeed, as early as was reasonably practicable. It is also the case, as his counsel Ms Swiney explained, that XG co-operated fully with the authorities.
In the course of her submissions, Ms Brown also noted the operation of s 5(2BD) of the Sentencing Act, which provides that, in sentencing, this Court (a) must not have regard to the fact that XG was subject to an order made under the Serious Offenders Act, but, if relevant to the conditions of any sentence imposed by it, may have regard to the conditions, if any, imposed on that order and the terms of any current directions or instructions given by the authority under Part 11 of that Act; and (b) must not have regard to the possibility or likelihood an application being made under that Act for an order in respect of XG.
Helpfully, Ms Brown referred me to the remarks of the Court of Appeal in Price v The Queen (No.2) on the construction of that provision.[9] There was also discussion about the metes and bounds of that provision vis-a-vis sentencing — although, in the end, I think it is unnecessary to pursue that discussion any further in this case.
[9]Price v The Queen (No.2) [2019] VSCA 44, esp. at [56] (per Whelan AP, McLeish and Forrest JJA).
Defence plea and submissions
In her written submissions, Ms Swiney conceded the submissions made on behalf of the Director on sentence, including those in relation to specific and general deterrence and community protection. In those submissions, she also conceded that a period of imprisonment is warranted, and that it is an aggravating factor that XG had so recently been released from prison after serving a term of imprisonment for the same type of offending.
Also in those submissions, Ms Swiney argued that, given the 17 days he spent on remand to date and the 14 days of Renzella time, XG ought to be sentenced to a term of imprisonment that would not exceed in the total time he spent on remand.
In her oral submissions made this morning on the plea, however, Ms Swiney submitted that it would be open instead to convict and discharge XG on this particular offence in all of the circumstances.
Ms Swiney also helpfully explained some of XG’s background and personal circumstances.
Before I turn to those matters, I will mention this. When imposing sentence in 2013 for the index offending, Beach J recorded that XG came to Australia from Vietnam when he was about ten years of age. His parents sent him to Australia as a refugee in the company of a Vietnamese lady who became his foster mother. Eventually, his relationship with his foster mother broke down and, within a few years of arriving in this country, he ran away and lived on the street, in crisis accommodation and in various foster homes.
Ms Swiney explained that, whilst in prison on the long sentence, XG did various courses, and attained certificates, in order to enhance his prospects of rehabilitation generally and employment in particular. She also explained that, when first released at the expiry of his sentence, which was in November last, and before he was arrested and charged in respect of the first contravention (of what was then the interim supervision order), XG worked in a fish and chip shop, but there were some difficulties in doing so.
Ms Swiney explained that XG is illiterate but that he is very keen to work, is bored without it, but of course finds it very difficult to secure employment given the strictures of the order under which he currently finds himself. Those strictures include conditions that he must wear an ankle bracelet for monitoring, be accompanied by a person from his accommodation whenever he is away from those premises, and other restrictions.
Ms Swiney explained that XG’s case worker (and this is my word) “sympathised” with him but emphasised the importance of being patient: “Just be patient. It must be hard”.
As is apparent from the reasons of Beale J when making the final supervision order on 2 February, XG ended up serving the whole of his sentence of over ten years’ imprisonment in custody. He was not released on parole. In October, it had been determined that the interim supervision order would be imposed and that its operation would commence immediately after his release on the expiry of the total effective sentence of ten years and three months’ imprisonment on 5 November.
Pursuant to that order, XG was directed to reside at a particular residence. He was then held in custody from 13 January until 10 February this year, when the first contravention charge was dealt with.
When imposing the final supervision order, Beale J accepted XG “represents a high risk of committing a serious violence offence if no further intervention and support is provided, and particularly if he relapses to misusing substances”. His Honour also accepted that he has a long-standing mild intellectual disability.
XG will return to his previous residence as one of the restrictive conditions of the supervision order after he is released today.
The supervision order presently has a duration of four years, only a short part of which has been completed up until today.
Consideration
In considering sentence, I have had regard to the matters raised by both counsel, including the following.
As I have said, this is XG’s second offence for contravening an order on the same basis, albeit that it was an interim order previously. Moreover, he committed the present offence only about two-and-a-half weeks after being sentenced on that previous breach. Thus, I accept that specific deterrence is a sentencing purpose that should be emphasised in this case.
For the reasons urged by Ms Brown, I also accept that general deterrence is a relevant sentencing purpose.
Further, insofar as it might be said that, given his history, using methylamphetamine is a risky business for XG in particular, then the purpose of community protection also appears to have some role to play in sentencing him for this offence. That said — and this was accepted by Ms Brown on the plea — there is no evidence before me that using the drug on this occasion in any way made XG dangerous or that he was aware of any such risk.
It is also relevant that the offence is based on his use of methylamphetamine on just the one occasion.
In addition, I accept that he did so to assist with back pain. I also accept that he hates where he resides, and that he is likely bored and distraught because he does not have a job. Sadly, it is difficult to see him getting a job in the near future, given the strictures of his supervision order and the institutionalisation that is likely besetting him, having spent the last ten years or so in prison without parole.
Why we, as a community, keep doing this is beyond me. Other jurisdictions have tried denying prisoners parole only to find that it is counter-productive in protecting the community in the longer run. It seems that, for those in XG’s position, the new de facto parole is to be placed on one of these supervision orders after the expiry of the total effective sentence imposed by a court for actual offending. But it must be remembered that being placed on one of these orders results not from offending, but because of the risk that a serious violent offence might be committed.
In these circumstances, it is no wonder that XG felt as he did at the time of his offending. In saying this, I am careful to avoid breaching the injunction in s 5(2BD)(a) — namely, that I must not have regard to the fact that he is subject to an order made under the Serious Offenders Act. There is, however, in my view, no breach in recognising the hopelessness or frustration that he might feel because of his residential, employment and general life circumstances.
Insofar as I can determine them, I have had regard to current sentencing practices for the offence at hand. This is but one factor in sentencing, and certainly not a controlling one at that, but it is nevertheless important in the sentencing synthesis.
I have not, however, found or been provided with any sentencing statistics for this offence. I expect there are not any at the moment. Sometimes, though, case comparisons may assist in gauging current sentencing practices. In this connection, as well as having regard to Beale J’s sentence for XG’s earlier contravention of the interim order, it is instructive to return to the sentences mentioned earlier in DPP v SM and R v TA.
In SM, there were two contraventions based on possession and use of buprenorphine two days apart. SM had no prescription for the drugs. These were his first contraventions of the order. Surprisingly in my view, these charges were persisted with against SM despite the fact that charges of possessing and using the same drugs were prosecuted separately in the Magistrates’ Court and, what is more, resulted in an aggregate sentence of seven days’ imprisonment. In those circumstances, and given that SM had spent an additional 11 days in custody on the contravention charges, as well as having regard to his personal circumstances, Elliott J imposed an aggregate fine of $500 on the contravention offences.[10]
[10]DPP v SM [2019] VSC 466 at [12]-[18].
In TA, the offender used buprenorphine for which he had no prescription. He did this within a month of the supervision order being extended. This was his first breach of the order. Balancing all matters, Taylor J fined TA $300.[11] Her Honour observed that, where supervision order contraventions are drug-related, repeated contraventions of an order are ordinarily required before even a short period of imprisonment is appropriate.[12] This, of course, is the very thinking to which Ms Brown was referring me earlier in this case. In the next breath, however, Taylor J said this directly to TA: “This factor will not weigh in your favour again”.
[11]R v TA [2021] VSC 479 at [11]-[19].
[12]R v TA [2021] VSC 479 at [13].
Now, it is possible to make more nuanced comparisons between these cases and the present matter. But, in the area of sentencing, it is almost always difficult usefully to compare cases. No two cases are ever truly alike. And, indeed, neither of those two cases was quite the same as XG’s case. Nor, as it happens, is his own prior contravention precisely the same as this one. And, in any event, sentences are not precedents to be applied or distinguished. In the end, as always, because of the limits of that process, I have been driven to rely principally on the circumstances of this case and sentencing principles to arrive at the appropriate sentence for this particular offence.
It is also important to understand that notwithstanding Taylor J’s remark in TA — namely, that “[t]his factor will not weigh in your favour again” — sentencing is not a ladder of sorts in respect of which a judge is bound to impose a heavier sentence than (or, for that matter, a similar sentence to) a previous sentence imposed on an offender for the same or a similar kind of offence. Each case must be considered on its own facts, recognising of course that in this case a sentence of 14 days’ imprisonment was imposed for a similar offence against XG only two-and-a-half weeks before the current offence was committed.
In my opinion, in all the circumstances, and notwithstanding Ms Brown’s submission, this offence neither warrants nor demands a term of imprisonment. It is just not serious enough to attract a prison sentence of any duration. Yes, XG breached the supervision order by taking methylamphetamine in contravention of an express condition prohibiting him from doing so. And yes, he, least of many people, it seems to be thought, can afford to be taking that illicit and potentially dangerous drug. But that is all he did, and on only one occasion, and in the circumstances that have been described. As I have said, there is no suggestion, and certainly no evidence, that he was in fact rendered dangerous in the slightest by his ingestion of the drug on this occasion, or that he believed that he was rendered dangerous. He is also, as Beale J accepted, mildly intellectually disabled, and he was in pain and feeling frustrated and hopeless. In all the circumstances, I regard XG’s moral culpability as low.
Even if I am manifestly wrong in my opinion, and even if I thought the offence demanded imprisonment, I still would not impose a prison sentence in the particular circumstances of this case. This is because, in addition to my assessment of the nature and gravity of offence and the factors in mitigation, and as is accepted by the Director, XG has 14 days of Renzella time to be brought into account in the sentencing calculus. This is to say nothing of the fact that he spent the last 17 days in custody as well.
The fundamental principle of parsimony must come into play. As s 5(3) of the Sentencing Act provides:
… 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.
In the circumstances of this particular case, none of the sentencing purposes in s 5(1), either individually or collectively, demands a prison sentence. Indeed, in my view, to impose any prison sentence now, even with a declaration of pre-sentence detention amounting to time served, would be more severe than that which is necessary to achieve the applicable sentencing purposes — including just punishment, general and specific deterrence, protection of the community and denunciation.
Moreover, to impose a prison sentence would be to thwart the longer-term aim of rehabilitation. While it is a secondary purpose, one of the express purposes of the Serious Offenders Act is “to facilitate the treatment and rehabilitation of offenders”.[13] I do not think that that purpose has been facilitated in any meaningful way at this very early stage of the order. Indeed, while XG has contravened the conditions of his interim and final orders twice in a relatively short space of time, he has hardly had much time in the community yet to settle into his new life under the strictures of a supervision order. He spent over ten years in prison and with no time on parole. He should be given a reasonable chance to adapt to life under this supervision order which, after all, is to be in place for the next four years or so.
[13]Serious Offenders Act 2018 (Vic), s 1(b).
Sentence
In all the circumstances, pursuant to s 73 of the Sentencing Act, on the charge before the Court, XG is convicted and discharged.
Epilogue
I wish to add this. None of this is to say that XG may continue to take illicit drugs in contravention of the supervision order with impunity.
Despite the sentence I have imposed on you (and I am now speaking directly to you, XG), despite the sentence I have imposed on you today, XG, as Beale J said when imposing sentence on the last occasion, if you keep breaching the supervision order by taking illicit drugs, you will probably keep getting charged and end up being convicted and sentenced to imprisonment, and perhaps for longer and longer periods each time.
Allow me this indulgence. In 1967, the Jamaican musician Danny Livingstone released the rocksteady song, A message to you, Rudy. The song was covered and made famous by the English ska band The Specials, in 1979, which, as it happens, was the year after you were born, XG. I remember it well. I was 15 at the time.
The lyrics include these lines. And I am not going to sing them, because I cannot sing, but I am going to speak them to you:
Stop your fooling around.
Time to straighten right out.
Better think of your future,
Else you’ll wind up in gaol.
Rudy,
A message to you, Rudy.
A message to you.
To me, XG, you are Rudy in that song. And I think you would be well advised to listen to the message in the song, if not in my reasons.
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