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

---

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

---

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.

---

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

HER HONOUR:

1. 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’).

1. 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

1. 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.

1. 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.

1. 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 in breach of the Order. But, based on that information, your case manager suspected that you had breached condition 5.4 of the Order by using drugs and directed you to submit to urinalysis. The result of that urinalysis, obtained on 8 July 2021, was negative for tested substances, but the sample produced was diluted. Given that the dilution can produce a false negative, you were redirected by your case manager to attend for urinalysis on 9 July 2021.

1. The result of that urinalysis, on 12 July 2021, also was negative for tested substances, but the sample was again diluted. On 13 July 2021 you were once again redirected for urinalysis. Your response to that redirection was less than calm. Nonetheless you complied with it and on the same day produced a viable sample.

1. On 15 July 2021 the result of the urinalysis was positive for Buprenorphine, which is not a drug prescribed to you.

1. You were arrested at your home address and taken to Sunshine Police Station. Upon being interviewed you stated that you had found one unopened strip of Buprenorphine in the garage as you were cleaning it. You took it inside your house and used it by ‘snorting’ it. You also said that you were aware of the drug from your time in prison and had previously taken it. Following this interview, you were admitted to bail.

Consideration

1. The contravention of an interim supervision order is a very serious matter. This is illustrated by the mandatory minimum term of imprisonment that follows a contravention of a ‘restrictive condition’[1] of an interim supervision order as well as the maximum penalty for the contravention, absent reasonable excuse, of any condition of such an order, namely five years’ imprisonment.[2]

   [1]That is an ‘intentional or reckless’ contravention of a ‘restrictive condition’ – see Sentencing Act 1991, s 10AB.

   [2]Condition 5.4 is not a ‘restrictive condition’ of the Order.

1. The maximum penalty, when a hearing of the contravention of such an order is determined summarily, is two years’ imprisonment.[3]

   [3]Sentencing Act 1991, s 113.

1. In considering the appropriate sentence it is relevant that in March 2020 you were convicted and fined for the possession of Buprenorphine and also that your past violent offending was associated with drug use.

1. However, in this matter there are a number of factors that, in combination, persuade me that imprisonment is not warranted.

1. First, this is the first time you have contravened the Order. Where supervision order contraventions are drug-related, ‘repeated contraventions of an order are ordinarily required before even a short period of imprisonment is appropriate’.[4]  This factor will not weigh in your favour again.

   [4]Director of Public Prosecutions v SM [2019] VSC 466 (‘SM’), [13] (Elliott J).

1. Second, Buprenorphine is not an illicit drug, but a prescription medicine ordinarily used to treat addiction. While it is a prohibited drug, ‘its use ought to be treated differently to the possession and use of illicit drugs such as cannabis, methylamphetamine or heroin’.[5] And, particular to you, the evidence heard during the application for the Order and the subsequent application for a Supervision Order is that your past violent offending has been associated with methlyamphetamine and steroid use.

   [5]Ibid, [14].

1. Third, it appears that your use of Buprenorphine on this occasion was opportunistic and spontaneous. You did not go looking for prohibited drugs. You happened upon the strip of Buprenorphine when you were cleaning your garage. You happened to be feeling low as a result of the anniversary of your father’s death. You took the drug in a moment of weakness.

1. Fourth, aside from this behaviour and the ongoing concern of diluted urine samples, you have abided by the Order and made an effort towards your rehabilitation. In particular you have been attending your supervision and casework appointments, have participated in drug and alcohol counselling and engaged with the Australian Community Support Organisation (‘ACSO’) which has approved funding for you to obtain your truck licence.

1. Fifth, you continue to enjoy the support of, and good relationships with, your mother, sister, uncle and girlfriend. You are still pursuing long term goals, particularly the establishment of your clothing business. And you have not been involved in any violent offending.

1. Sixth, you made full admissions to police and entered your plea of guilty at a very early stage.

Sentence

1. Balancing these matters, for the charge of contravening a condition of the Order, you are convicted and I impose a fine in the sum of $300.

1. Pursuant to s 6AAA(3) of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a fine with conviction in the sum of $600.