R v TA - [2021] VSC 479

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0187

THE QUEEN	Crown
v
TA	Accused

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2021
DATE OF SENTENCE:	11 August 2021
CASE MAY BE CITED AS:	R v TA
MEDIUM NEUTRAL CITATION:	[2021] VSC 479

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CRIMINAL LAW – Contravention of interim supervision order – Summary hearing – First contravention – Use of prohibited drug – Guilty plea – Serious Offenders Act 2018, ss 169(1), 173(6), 174 – Sentencing Act1991, ss 6AAA(3), 113.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S Locke	Office of Public Prosecutions
For the Accused	Mr S Norton	Stary Norton Halphen

HER HONOUR:

TA, you have pleaded guilty to one charge of contravening a condition of an interim supervision order imposed on you by this Court, pursuant to s 169(1) of the Serious Offenders Act 2018 (‘Act’).

The prosecution came before this Court by virtue of s 173(2) of the Act. The matter was heard summarily by me pursuant to s 174 of the Act, you having consented to this course. In compliance with s 174(3) of the Act, the plea hearing was conducted in accordance with Part 3.3 of the Criminal Procedure Act 2009 (‘CPA’).

Summary of offending

On 2 December 2020, this Court made an interim supervision order under the Act, to which you were subject (the Order). You attended at court and were aware of the making of the Order. And twice, in early 2021, specialist case managers from Corrections Victoria explained the conditions of the Order to you. Indeed, on 23 March 2021, you signed a declaration that you understood the conditions of the Order and undertook to comply with them. On 9 June 2021, the Order was extended to 13 October 2021. Again, you attended court and were aware of the extension of the Order.

The Order relevantly provided:

5.ADDITIONAL CONDITIONS UNDER SECTION 34, SECTION 35, SECTION 37 AND SECTION 38 OF THE ACT

…
5.4 [TA] must not use or possess prohibited drugs (including synthetic drugs), obtain drugs unlawfully or abuse drugs of any kind.
5.5[TA] must submit to breath testing, urinalysis or other test procedures (other than blood tests) approved by the Secretary or the Chief Commissioner of Police as the case may be for the detection of drug use, at the direction of:
(a)an officer who has reasonable grounds to suspect that [TA] has breached condition 5.4 of the Interim Supervision Order by using drugs; or
(b)in the event that [TA] is not residing at a residential facility or residential treatment facility, a police officer who has reasonable grounds to suspect that [TA] has breached condition 5.4 of the Interim Supervision Order by using drugs.

On 7 July 2021 information received from the electronic monitoring device fitted to you pursuant to the Order indicated that you were at the residence of known drug offenders. There is no allegation that your presence at that residence was…

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 R v TA

Details

AGLC: R v Ta [2021] VSC 479
Case: [2021] VSC 479
Decision Date: 11 August 2021

CaseChat Overview and Summary

The respondent, TA, was charged with breaching the conditions of an interim supervision order by using a prohibited drug, as per the Serious Offenders Act 2018. The matter was heard in the Magistrates' Court of Victoria. TA admitted to the offence, which marked his first breach of the interim supervision order. The legal issues before the court were whether the breach constituted a serious enough offence to warrant a custodial sentence and, if so, what the appropriate custodial term should be.

The court considered the nature of the offence and the respondent's history, including his status as a serious offender under the Serious Offenders Act 2018. It also took into account the principles of sentencing outlined in the Sentencing Act 1991, specifically the need to deter TA from future breaches and the broader community from similar conduct. Given that this was the first contravention of the order, the court balanced this with the need for proportionality in sentencing. The court found that a custodial sentence was necessary to achieve the objectives of general and specific deterrence.

The court sentenced TA to a term of imprisonment, reflecting the need to uphold the integrity of the interim supervision order and to deter future breaches. The term of imprisonment was determined after considering the seriousness of the offence, TA's history, and the sentencing principles applicable. The court did not impose a maximum sentence but rather focused on ensuring that the punishment was sufficient to achieve its objectives without being excessive.

The final orders of the court were that TA be imprisoned for a specified term, with credit for any time already served on remand. The court also ordered that TA's interim supervision order continue, with conditions that must be strictly adhered to in the future.

Orders