Crown v Accused

2 The charges of contravening a condition of a supervision order came before this Court by virtue of s 173(2) of the Act. The case was heard and determined summarily by me pursuant to s 174 of the Act, you having consented to this course and entered pleas of guilty on those charges. The other charge was before the Court because you consented to a direct indictment being filed containing that charge. Upon arraignment, you pleaded guilty to this charge also.

3 The maximum penalty for contravening the conditions of a supervision order is five years' imprisonment, but because those charges were dealt with summarily by this Court, the maximum penalty on each charge is two years' imprisonment,[1] with a total maximum penalty for all of the offences of five years.[2] As for the charge of possession of a drug of dependence, because of the circumstances of this crime, the maximum penalty is five penalty units.

4 On 12 March 2003, you were sentenced to a long term of imprisonment for the crime of murder. The facts of that crime are set out in the decision of this Court in Secretary to the Department of Justice and Community Safety v SJW ('SJW').[3]

5 On 18 March 2020, I made an interim supervision order against you. On 13 August 2020, I made a SO for a period of five years, being satisfied that you posed an unacceptable risk of committing a serious violence offence if a SO was not made and you were in the community.

6 The SO contained, inter alia, the following conditions:

6.5 [SJW] must not use or possess prohibited drugs (including synthetic drugs), obtain drugs unlawfully or abuse drugs of any kind.

6.6 [SJW] must submit to breath testing, urinalysis or other test procedures (other than blood tests) ...for the detection of alcohol or drug use, at the direction of:

6.6.1 an officer who has reasonable grounds to suspect that [SJW] has breached condition 6.4 and/or 6.5 of the Supervision Order by consuming alcohol and/or drugs.

...

6.10 [SJW] must not engage in any form of gambling, except in accordance with the written directions of the Post Sentence Authority.

7 On 17 September 2020, Specialist Case Manager Najidai gave you a verbal direction to attend for urinalysis, having formed a suspicion you may have used or possessed drugs due to some things you had told her.

8 On 18 September 2020, you contacted Ms Najidai and admitted having used cannabis three weeks prior. You attended for urinalysis that day at Williamstown Dorevitch. The sample of urine you provided was found to be diluted.

9 As a result, on 22 September 2020, Ms Najidai directed you to again attend for urinalysis. Analysis of the urine sample you provided on that date showed the presence of cannabis. That positive test is the basis of charge 1.

10 Charge 2 flowed from an investigation conducted by Victoria Police into your gambling activities as revealed by two online betting accounts to which you had access, namely, a Neds account, and a TAB account. It was ascertained that:

(a) between 13 August 2020 and 27 August 2020, you placed 62 bets totalling $270.50 on the Neds account; and

(b) between 13 August 2020 and 24 September 2020, you placed 161 bets totalling 697.50 on the TAB account.

11 Charge 4 of contravening condition 6.5 of the SO and the charge on the indictment of possession of a drug of dependence both arose from a visit to your home address by police on 25 September 2020. Police located a small amount, of the order of one gram, of cannabis in a small container in the lounge area.

12 You were arrested by police and charged that same day with all four offences before the Court. It was later ascertained that the appropriate way for the drug charge to be brought before this Court was by the filing of a direct indictment.

13 I have been informed that you were cooperative with the police upon your arrest. You made admissions in relation to the possession and use of cannabis. You also provided access to your telephone and admitted your gambling activity, acknowledging that it was out of control.

Performance on the SO and context of the offending

14 Aside from your breaches of the SO set out above, which, as I will expand upon later, were clearly serious, your performance on the SO was in other respects satisfactory, indeed, commendable. You willingly engaged in weekly supervision sessions. You also continued to engage and participate in clinical treatment for your gambling addiction and drug problem. You were not referred to a specialist specifically in the area of gambling treatment. Rather, you received treatment in that regard from your alcohol and drugs counsellor. Being uncomfortable about the possible results of disclosure of your ongoing gambling to that person, however, you also took the step of arranging to attend some meetings of Gamblers Anonymous on Zoom. You openly discussed your electronic monitoring data with your supervisors, and in respects other than your gambling and drug use, were open as to your movements and activities.

15 You lived in an apartment in the western suburbs from the time of your release, in recent times with the financial assistance of Melbourne City Mission. You lived alone but surrounded by what was described in the Quarterly Review - Status Report[4] as a tight knit group of neighbours. In furtherance of your apparent desire to turn your house into a home, you were able to access $10,000 of your superannuation, with which you purchased, with the assistance of the Australian Community Support Organisation, essential household items, including kitchen appliances, a couch, and a queen size bed. Having furnished your apartment accordingly, you proudly showed Corrections Victoria staff photos of this accomplishment. It was considered by the authorities that your pursuit of a stable home of which you could feel proud was a positive step in your rehabilitation.

16 I note that there is nothing to indicate that the money you withdrew from your superannuation account was expended to any extent on gambling.

17 You indicated an intention to acquire a dog, and have been making arrangements for that to occur. Also, you did acquire a pet bird, which is currently being looked after by a neighbour.

18 These steps you have taken are to your credit. I note, however, that in spite of the progress you made, and the stability of your living arrangements, you have not had employment, and lived a somewhat lonely and limited life. Your offending occurred in that context. In particular, I note that gambling for some time had been an important outlet in your life, and was something that was always going to be difficult for you to let go.

19 Your personal background is set out sufficiently in SJW so as not to require repetition, but I note that you are now 54 years old. You have a long criminal history which commenced in 1985, culminated in your conviction and sentence for murder, and continued on after that with several further convictions.

20 You were diagnosed by Dr Michael Davis as suffering from Opioid Use Disorder and Antisocial Personality Disorder at the time of his first Detention and Supervision Report dated 12 December 2019. He detailed a number of pertinent aspects of your personality as revealed by psychological testing carried out. He noted that you had a damaged personality structure complicated by chronic and severe substance abuse and repeated periods of imprisonment.

21 By the time the Addendum Report of Dr Davis was prepared, important changes had taken place in your presentation and conduct, while you were subject to the interim supervision order I had earlier imposed. You had apparently engaged in problematic gambling from the time of your release. The gambling had become an obsession for you, substantially interfering with your life and financial stability. Dr Davis diagnosed you with Gambling Disorder (episodic, moderate severity). In effect, Dr Davis considered your problematic gambling to be at the heart of the substantial deterioration in your condition from the time of your release. As he put it, your gambling disorder was of the nature of a drug addiction. It was apparent to me that strong action was required in order to try to halt the decline in your mental state, and the corresponding risk in reoffending. With that in mind, and in spite of your opposition to this through your counsel, then, as now, Mr de Vietri, I imposed a prohibition on gambling as one of the conditions of the SO. There was also, as indicated earlier, a condition prohibiting the consumption or possession of drugs.

22 You pleaded guilty to the charges at the earliest opportunity. Mr de Vietri submitted that you should receive the full benefit for that early plea of guilty. I accept that that is so. Your plea of guilty has significant utilitarian benefit, avoiding the need for a contested hearing, which may be viewed as being particularly significant in these troubled COVID-19 times. It showed an acceptance of legal responsibility and a willingness to facilitate the course of justice. It was also demonstrative of the remorse which I accept that you feel, notwithstanding the very deliberate nature of your offending.

23 Mr de Vietri submitted that your diagnosed mental disorder of Gambling Disorder, as revealed in the Addendum Report of Dr Davis, is relevant to sentencing as it reduces your moral culpability for the offending in charge 2. He referred to the authority of R v Grossi,[5] in which Redlich JA surveyed the authorities in respect of gambling and mitigation. He submitted that because of the direct link between your gambling addiction and the offending, this should be viewed as being one of those 'rare cases', to use the words of Redlich JA at [51], where the presence of a gambling disorder is mitigatory in the sense that limb 1 of R v Verdins ('Verdins')[6] is enlivened. Mr de Vietri did not submit that the gambling disorder from which you suffered had the effect of reducing the need for specific or general deterrence, or that any of the other limbs of Verdins applied.

24 Without necessarily deciding that that principle in Verdins is applicable in your case, I do accept the proposition that your moral culpability in respect of your offending constituted by charge 2 is reduced by the fact that whilst you clearly knew that you were not permitted to engage in any gambling, and could readily perceive that it was wrong to do so, your conduct was driven less by a deliberate disrespect for the order of this Court than by the gambling obsession which gripped you.

25 It was submitted by the prosecution, and not challenged by your counsel, that general and specific deterrence are both important in sentencing you. Those who are on SOs must understand that courts will take a dim view of, and strong action against, breaches of the conditions of such orders. As was stated by Williams J in Acting Secretary to the Department of Justice v McKane:[7]

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 courts.[8]

26 You, yourself, must fully understand what will happen to you in future should you again breach the conditions which bind you. Protection of the community is also an important consideration in sentencing you. That is the primary purpose of the SO which was made against you, and it was to further that aim of protecting the community from possible future acts of violence by you that the various conditions including those which you have breached were included in the order.

27 Mr de Vietri submitted, and I accept, that rehabilitation is also an important consideration in your case. You have taken some encouraging steps towards your ultimate rehabilitation. Much more is ahead of you, but what you have achieved thus far, in particular, by avoiding any acts of violence, and by generally showing a willingness to engage in supervision and treatment, is cause for some measure of confidence. To my mind, it is important that you have the opportunity to return to the community, resume what has been quite stable accommodation, and recommence the important treatment you still need to receive to treat your various issues, including your drug reliance and your gambling addiction.

Nature and gravity of the offences and degree of responsibility

28 There is no question that notwithstanding my conclusion about your somewhat reduced moral culpability in respect of charge 2, and the surrounding circumstances of all of the offending, your crimes are serious. In spite of the condition prohibiting you from engaging in gambling, the evidence indicates that on the very day that I made the SO, you laid 28 bets on the Neds account, and that over the course of the ensuing five weeks, you continued to engage in prohibited gambling by laying a very large number of individual bets on your two accounts.

29 Mr de Vietri urged me to see your immediate commencement of gambling on the first day of the SO through the light of it being a clinical addiction rather than a purposeful disrespect for the authority of the Court. He submitted that your initial intention had been to clear out the money you had sitting in the two accounts, and then cease gambling. However, you were bombarded with all manner of special offers and bonuses, and, as he put it, got 'sucked back onto the treadmill of the addictive gambling cycle'.[9] Mr de Vietri also emphasised the small nature of the bets, and the fact that the total amount gambled was only $968.

30 In spite of those submissions, Mr de Vietri conceded that your offending on charge 2 represented a serious disregard for one of the conditions I saw fit to impose, being sustained over a period of six weeks and encompassing 223 occasions. He acknowledged that the offending on this charge was sufficiently serious to warrant a term of imprisonment.

31 As for the charges of breaching the drug prohibition condition and possession of a drug of dependence, these charges were all very much intertwined, he submitted. Furthermore, there was a connection between these charges and the gambling charge, in that you claimed that you had been using cannabis to calm yourself as a result of the distress you felt in connection with the gambling prohibition. There had been no repeat of drug possession or use in your time on remand, nor had there been any return to gambling behaviour. Mr de Vietri submitted that whilst the drug related matters were by no means trivial, they could be met with the imposition of an aggregate fine

32 Ms Kretzenbacher for the prosecution submitted that the objective serious of all of the offences, but especially the gambling breaches, was high, and that overall, a term of imprisonment was called for, but it would be open to the Court to impose fines in respect of the drug-related charges. As for the duration of any sentence imposed, that was a matter for the Court.

33 Mr de Vietri emphasised the importance of the principle of totality in sentencing you. The drug offences were inextricably entwined, and there was an 'interconnectedness between the illicit drug use and the gambling addiction'[10] to which I should have regard in assessing the appropriate total punishment for the offending.

34 I take the principle of totality into account in sentencing you.

35 I take into account, in sentencing you, the onerous nature of the conditions in which you have found yourself on remand awaiting this hearing. You have spent a proportion of the time in quarantine as a result of measures taken to prevent the spread of the virus into the prison system. In other ways which have become well known in recent months, the conditions of incarceration have been quite difficult, imposing limitations and challenges upon those in custody.

36 No particular sentencing authorities or statistics have been brought to my attention, but as I understand sentencing practices in respect of contraventions of conditions of SOs, it is quite common, depending on the severity of the particular breach, of course, for offenders to be sentenced by way of a fine for a first offence. Second or subsequent offences are commonly met with terms of imprisonment. What I have said about the common sentence upon a first breach, however, should not be taken as obscuring the serious nature of all such offences. As was noted by Elliot J in Director of Public Prosecution v SM, a case concerning the breach of an interim supervision order:[11]

The contravention of a condition of an interim supervision order is a very serious matter. This is demonstrated, amongst other things, by the penalties such contraventions can attract under the Act.[12]

37 Taking into account all of the circumstances of this case, and the mitigating features applicable to you, I consider that your offending constituted by charge 2 can only be met with a term of imprisonment. In arriving at the length of that sentence, I accept the submission of Mr de Vietri that you have already served a sentence of sufficient length to meet the needs of justice in this case, and that in order to further your prospects of rehabilitation, in particular, by allowing you to return to your home and resume the treatment you so seriously need, I should sentence you in a way that will enable you to be released today.

38 In respect of the other charges, one of which can only be met, at most, with a fine, in the circumstances I consider it appropriate to impose an aggregate fine. In arriving at the quantum of that fine, I have taken into account, as the law requires of me, your limited financial circumstances. I will grant a substantial stay in relation to the payment of the fine.

39 SJW, for charge 2, contravening the condition of your SO prohibiting gambling, you are sentenced to be imprisoned for a period of 47 days.

40 I declare a period of 47 days up to and including yesterday, 10 November 2020, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.

41 On the other three charges to which you pleaded guilty, you are convicted and fined an aggregate amount of $500.

42 I grant a stay of four months for the payment of the fine.

43 I indicate pursuant to s 6AAA(1) of the Sentencing Act 1991 that, but for your plea of guilty on charge 2, I would have sentenced you to 4 months' imprisonment on that charge. The law does not require me to make a declaration under this provision in respect of the other charges in view of the sentences imposed on those charges, and I decline to do so.

44 Mr W, you should be under no illusions as to the fact that the offending upon which you have been sentenced is serious. All of the conditions of your SO are important, and compliance with all of them is essential. It is vital that you continue to engage in treatment as directed by the authorities and that you avoid any repetitions of the current offending, or any breaches of different conditions of your SO. Without the Court pre-judging anything that might arise in future, you must understand that any future breaches will be viewed seriously. The maximum penalty for contravening a condition of a SO is five years' imprisonment.

[1] Sentencing Act 1991, s 113.

[2] Ibid, s 113B.

[3] [2020] VSC 503.

[5] [2008] VSCA 51; (2008) 23 VR 500.

[6] [2007] VSCA 102; (2007) 16 VR 269.

[7] [2012] VSC 459.

[11] [2019] VSC 466.