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[2023] VSC 162
General information, not legal advice.
Supreme Court of Victoria
2023-03-28
Jane Dixon J
Original judgment source is linked above.
CRIMINAL LAW - Sentence - Offences of contravening supervision order by using cannabis and methylamphetamine - Plea of guilty - Accused in community subject to supervision order for approximately three years - Importance of deterrence and community protection - Whether imprisonment necessary - Convicted and fined - Serious Offenders Act 2018 (Vic) ss 169, 173, 174, 175, 176 - (Vic) , (2BD) - - - - ; - - -
1 MTE,[1] you have been subject to a supervision order ('SO') under the Serious Offenders Act 2018 (Vic) ('the Act'), which was imposed by the Honourable Justice Champion on 21 May 2020,[2] and reviewed by myself on 17 September 2021[3] and again on 15 September 2022.
2 At all times, your SO has included conditions that you not use prohibited drugs. At the time of the relevant offending, your SO included the following conditions:
5.5 [MTE] must not use or possess prohibited drugs (including synthetic drugs), obtain drugs unlawfully or abuse drugs of any kind.
5.6 [MTE] 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 alcohol or drug use, at the direction of:
5.6.1 an officer who has reasonable grounds to suspect that [MTE] has breached condition 5.4 and/or condition 5.5 of the Supervision Order by consuming alcohol and/or drugs ...
3 Whilst residing in the community under your SO, you were charged with five separate sets of charges relating to breaches of the SO, and related drug use and breaches of bail, as summarised in the table below:
Contravene condition 5.5 by using prohibited drugs, namely cannabis.
Contravene condition 5.5 by using prohibited drugs, namely methylamphetamine and cannabis (rolled-up charge - charge 2 to be withdrawn)
Commit indictable offence of contravene supervision order whilst on bail
Contravene condition 5.5 by using prohibited drugs, namely cannabis
Commit indictable offence of contravene supervision order whilst on bail
Contravene condition 5.5 by using prohibited drugs, namely cannabis
Commit indictable offence of contravene supervision order whilst on bail
Contravene condition 5.5 by using a prohibited drug, namely cannabis
Commit indictable offence of contravene supervision order whilst on bail
4 The maximum penalties for each offence are as follows:
Level 6 imprisonment (5 years maximum)[4]
Level 8 imprisonment (1 year maximum) or 30 penalty units (currently $5,547.60) or both
Bail Act 1977 (Vic), s 30B
3 months imprisonment or 30 penalty units (currently $5,547.60)
5 At the hearing on 24 March 2023, and upon application by Counsel for the Crown, Ms Brown, amendments were permitted by the Court to a number of the abovementioned charges, there being no objection from the Defence. In brief compass, those amendments provided specification of the substances involved in the offences and greater precision regarding dates. Therefore, the abovementioned table reflects the final format of the charges after amendment, and refers to the foreshadowed withdrawal of charge 2 in proceeding S ECR 2023 0009 ('the second breach proceeding').
6 On each occasion that charges were laid against you, they were filed in the Magistrates' Court where bail was granted, but the charges were then transferred to the Supreme Court under ss 173 and 175 of the Act.
7 At the outset you accepted this Court's summary jurisdiction and pleaded guilty to all the charges against you, apart from charge 2 of the second breach proceeding, which was withdrawn because charge 1 was amended to be a rolled up charge of contravening a supervision order by using both methamphetamine and cannabis.
8 The breach of bail charges in proceedings S ECR 2023 0009, S ECR 2023 0014, S ECR 2023 0021 and S ECR 2023 0026 (the 'second', 'third', 'fourth' and 'fifth breach proceeding(s)', respectively) relate to the fact that you were placed on bail after the first episode of breaching the SO by using cannabis.
9 The following documents were tendered in the course of the proceedings, and have been taken into account in sentencing you:
(i) Summary of Prosecution Opening for Plea ('SPO');
(ii) Outline of Prosecution Submissions on Sentence;
(iii) Criminal Record of [MTE] (as of 14 March 2023);[5]
(iv) Table of Charges (extracted from SPO); and
(v) Chronology of relevant events;
(vi) Outline of Defence Submissions for Plea;
(vii) Table of comparative cases;
(viii) Letter of Dr [redacted] confirming medicinal cannabis prescription (dated 8 February 2023);
(ix) Incident Report relating to medicinal cannabis prescription (dated 9 February 2023);
(x) Incident Report relating to positive urinalysis result (dated 10 February 2023); and
(xi) Letter of Support by [redacted] (unsigned),[6] dated 14 March 2023.
10 The Crown summarised the background to each of the offences in their SPO. I have derived the narrative for each of the five breach proceedings from the SPO which was read in open court. It included the following details:
11 The first breach proceeding relates to you attending a virtual Forensic Intervention Service ('FIS') meeting on 20 December 2022 with clinician [redacted] ('Ms [S]'), whereby you told her of a relationship with a new female partner. You introduced your new partner to Ms [S] and your partner advised Ms [S] that she smoked cannabis for pain relief.
12 Two days later, on 22 December 2022, you disclosed to your Specialist Case Manager ('SCM'), Ms [G], that you had been present with your partner when she smoked cannabis. You were directed to attend urinalysis but failed to produce a sample that day. However you produced a sample on 23 December 2022, which was later found to be positive for cannabis.
13 On 4 January 2023, you were arrested by the Supervision Order Specialist Response Unit ('SOSRU') in relation to this incident and interviewed at [redacted] Police Station. You suggested that the sample result may have been from passive smoking, noting that your partner smoked 'seven cones a day'. You were charged and bailed from [redacted] Magistrates' Court on 5 January 2023.
14 On this occasion you self-reported to another SCM, Ms [D], on 6 January 2023 during a supervision appointment that you had used cannabis on multiple occasions since the last test. You provided a sample two days later which on 11 January 2023 returned a positive result for cannabis, amphetamine and methylamphetamine. You were arrested by SOSRU officers the following day and taken to [redacted] Police Station, where you admitted having smoked cannabis but could not explain the methylamphetamine sample result. You were charged and bailed from [redacted] Magistrates' Court on 12 January 2023.
15 The third breach proceeding related to self-disclosure of cannabis use by you on 18 January 2023, during an alcohol and other drugs assessment with the Australian Community Support Organisation. You were directed for testing, and a positive result for cannabis came back on 20 January 2023. You were arrested and interviewed the following day by SOSRU officers at [redacted] Police Station and said, among other things, that you had been using cannabis since 2021,[7] and were trying to reduce your usage. You said you had been working with [redacted] Community Corrections services to get assistance. You were charged and bailed from [redacted] Magistrates' Court on 21 January 2023.
16 Charges for the fourth breach proceeding arose due to disclosures made to [redacted] ('Ms [L]') - who was at that time your acting SCM[8] - during a supervision appointment, causing her to suspect you may still be using drugs. On 3 February 2023 you again tested positive for cannabis. You were arrested and interviewed that day and admitted using cannabis, saying you smoked in the morning and evening as a means to reduce stress, and you were trying to reduce your usage. You were charged and bailed from [redacted] Magistrates' Court on 21 January 2023.
17 These charges resulted when you told your acting case manager that you had felt agitated following the most recent arrest, and that you and your partner used cannabis to cope with stress and anxiety. You were directed for further testing and produced a positive result for cannabis on 10 February 2023. On 13 February you were arrested and charged. You said during the interview that day at [redacted] Police Station that medicinal cannabis had now been prescribed for you. However, you agreed that you had used cannabis before the prescription was made (testing occurring on 7 February 2023 and the prescription having been issued on 8 February 2023). You were charged and bailed from [redacted] Magistrates' Court on 13 February 2023.
18 Each of the abovementioned charges were found proven on the basis of the facts alleged in the SPO.
19 The circumstances of the index offending that led to the SO being made are well known to this Court. They were described in Champion J's initial ruling in relation to your interim supervision order,[9] and I will not repeat them here. For present purposes it suffices to say that you were a young man at the time of the index offending; you pleaded guilty to murder and were ultimately sentenced to 23 years' imprisonment with a non-parole period of 17 years. You were granted parole in June 2015, which was cancelled after two months due to cannabis use and poor compliance with urinalysis, after which time you returned to custody to serve out your head sentence.
20 Apart from the index offending committed when you were 19, upon which your SO is based, your prior offence history is fairly minimal. It includes offences dealt with in 1995 and 1996 such as car theft, driving offences and relatively minor dishonesty offences as well as a charge of escaping a Youth Training Centre.
21 After the age of 19 you went into custody following your arrest for the index offending.
22 A plea in respect of the current proceedings was made on your behalf by Mr de Vietri.
23 It should be noted for completeness that prior to the current prosecution, on 17 February 2023, I granted an application by the Secretary of the Department of Justice and Community Safety for leave to review the conditions of your SO due to the alleged breaches referred to above. I re-imposed a condition requiring you to be subject to electronic monitoring, taking effect from 17 February 2023 and to remain in effect for a period of six months (i.e. a temporary condition).
Penalties that may be imposed for breach of a supervision order
169 Offence to contravene supervision order or interim supervision order
(1) An offender who is subject to a supervision order... must not, without reasonable excuse, contravene a condition of the order.
Penalty: Level 6 imprisonment (5 years maximum).
(2) Subsection (1) does not apply to a contravention by the offender of -
(a) a condition relating to medical treatment; or
(b) a condition by engaging in conduct that threatens the safety of the offender or that causes harm to the offender.
25 In relation to breaching a supervision order, the Court must impose a term of imprisonment of 12 months if it is satisfied that the offender intentionally or recklessly breached a restrictive condition[10] of their supervision order. However, the current charges do not involve breaches of restrictive conditions.
26 If a person subject to a supervision order is charged with breach of that order, the Magistrates' Court is required to transfer those charges and any related summary offences to the court which imposed the supervision order.[11] I determined that this Court should hear and determine the breach allegations and related charges summarily, following your consent being given to summary jurisdiction[12]
27 When imposing sentences for breach offences and related charges that are capable of being heard and determined summarily, the Court may impose any sentence that the Magistrates' Court could have imposed pursuant to ss 174(4) and 176(7) of the Act.
29 There is a developing jurisprudence regarding appropriate penalties for breach of SOs. Current sentencing practice, including reference to several recent cases, was referred to by the parties. Mr de Vietri helpfully touched on some of the relevant principles drawn from those case in his written and oral submissions:
(a) In Director of Public Prosecutions v SM[15] ('SM'), Elliot J considered a plea of guilty to 2 charges of contravening a condition of an interim SO made pursuant to s 169(1) of the Act (namely, consumption of prohibited drugs). His Honour considered that as it was the defendant's first contravention a sentence of imprisonment would be an excessive response, observing:
[T]his is the first time that you have contravened the Order ... where the relevant supervision order contraventions are drug-related, repeated contraventions of an order are ordinarily required before even a short period of imprisonment is appropriate.[16]
(b) In the subsequent case of DPP v SJW,[17] Tinney J followed on from the observations of Elliot J in SM and observed:
[A]s I understand sentencing practices in respect of contraventions 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.[18]
30 I note that the circumstances of your offending differ from that of the offender in SM, in that your offending involved several repeated occasions of substance use, although you are nevertheless coming before the Court for the first time for contravention of the SO.
31 Recently, in DPP v XG[19] ('XG'), Croucher J considered contravention proceedings under the Act and referred to the principles of parsimony and rehabilitative purposes enshrined in the Act. His Honour said as follows:
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".[20]
32 His Honour did also there note that the use of methylamphetamine does have some intersection with - and therefore role to play in - the purpose of community protection, and thus the sentencing exercise.[21]
33 The Crown argued that your offending requires a term of imprisonment because breaching a supervision order is a serious matter and undermines the effectiveness of the legislative scheme under the Act which is aimed at community protection.
34 It was submitted that general and specific deterrence and community protection were important considerations;[22] that the breaches were repeated and in close proximity to one another and some of them occurred after you having already been arrested for the breaches; and that the sentence must reflect the totality of the offending and distinct criminality while avoiding double punishment.
35 Regarding the effect of the s 5(2BD) prohibition, the Crown referred to the Court of Appeal's consideration in Price v The Queen (No 2),[23] submitting that this Court would be entitled to take into account the fact that you were subject to a SO at the time of the relevant offending, and to treat this fact as a relevant consideration for general deterrence and community protection.
36 In reply to Mr de Vietri's subsequent oral submissions on the issue of s 5(2BD) (which I will later summarise), Ms Brown queried the existence of an alternative reading of s 5(2BD) of the Sentencing Act 1991 (Vic) ('Sentencing Act'), and it is perhaps most helpful if I relevantly quote her remarks from the transcript as follows:
In my submission, having gone back to the decision of Price ... the question before this court isn't a question that is directly answered by the Court of Appeal in Price, having regard to the language of the section, there is a reading available ... a distinction drawn between the imposition of a sentence or the sentencing task and the conditions of a sentence.
So there is an available reading that the suggestion by my friend [Mr de Vietri] would breach that injunction in s 5(2BD). However, there is an alternative reading available, and I appreciate that this draws some fine distinctions but I think that's to some degree necessitated by the language of the [Sentencing] Act, between the fact of an order being in place and the practical realities that occur in the offender's life, if I can put it that way, as a result of the order, and in my submission I would concede that the suggestion by my friend that this court may take into account the existence of the electronic monitoring bracelet insofar as it relates to community protection is a course that's open ... [T]o do otherwise would invite a degree of artificiality into the sentencing process.[24]
37 The Crown accepted that a proposal to plead guilty had been indicated at an early stage - therefore requiring that you receive a benefit for that plea - and that your rehabilitation is in the community's interest. It was also observed that you had served two days of pre-sentence detention, having been held in custody overnight in relation to both the first and fourth breach proceedings on 4 January 2023 and 3 February 2023 respectively.
38 Mr de Vietri on your behalf submitted that you left prison on 27 January 2020 after serving a sentence for commission of the index offence that occurred when you were aged 19 (you are now aged 45).[25] You became subject to the post-sentence regime over three years ago - I understand in this respect Mr de Vietri was combining the period which you spent on the interim supervision order imposed by Champion J in January 2020,[26] as well as the subsequent four-year supervision order also imposed by his Honour.[27]
39 Mr de Vietri submitted that in many ways you have shown how someone on a supervision order can do well and can benefit from the regime that is in place, and with some cooperation and support can achieve what is intended to be achieved under the regime. He argued that you are gradually increasing your independence in your daily life, and that as time passes the risk that you pose can be regarded as having gradually decreased. It was put that you have appropriately availed yourself of the supervision and support offered, and that considering the period of time spent in custody it should be regarded as favourable that you managed nearly three years without a breach of the SO. Whilst these proceedings represented a backwards step, it is difficult for persons subject to the supervision order regime not to have any such setbacks.
40 Counsel urged that, in sentencing you, I should take account of the fact that this is the first time you have appeared in court for contravening the SO since being released in early 2020, whilst acknowledging the fact that this is your first such appearance means this factor will not weigh in your favour again.[28]
41 The supervision order contravention charges and drug and bail offences were submitted to represent a low point in your progress on the SO, showing you still need supervision and monitoring. However, since the last episode (the fifth breach proceeding) it was submitted that you have shown that you are able to get back on the right path.
42 Mr de Vietri's written submissions were predicated on acknowledging that the Court is aware of details about your background, the index offending and the nature and conditions of your SO from having dealt with you and your SO in previous proceedings.[29]
43 It was further submitted that the Court should have regard to the following matters:
(a) On 17 February 2023 this Court re-imposed a condition requiring you to comply with 24-hour electronic GPS monitoring via an ankle bracelet (what I will term, for convenience, the 'Serious Offender proceedings'). You were despondent for about 3 days after the condition was reimposed. However, since then you made a conscious effort to try to live life positively despite the electronic monitoring bracelet and the negative associations and emotions you draw from it.
The Defence submitted that in the Serious Offender proceedings, part of the justification for the imposition of this monitoring device was to act as a deterrent and allow monitoring of potential interactions with persons involved in illicit drugs; and that this condition provides a significant added level of protection and monitoring that did not exist at the time of the current offences before the Court.
Specifically, it was submitted by Mr de Vietri that - whilst this cannot be taken as a 'mitigating' factor by reason of s 5(2BD) of the Sentencing Act[30] - it must be relevant to informing the Court's assessment of your present risk of reoffending in a similar manner, noting that, since the imposition of the ankle bracelet, there has been no reoffending. In oral submissions before me, Mr de Vietri sought to advance this submission by clarifying that the re-imposition of the electronic bracelet was relevant to the Court's assessment of your risk of reoffending (vis-à-vis community protection), and also specific deterrence;[31]
(b) During February 2023 you attended several phone appointments with Caraniche while waitlisted for the High Risk Offenders Alcohol & Drug Service ('HiROADS') program.[32] You have since had 3 face-to-face sessions[33] with the HiROADS clinician. The next appointment is scheduled for 28 March 2023;
(c) On 8 February 2023, you were medically prescribed cannabis by Dr [redacted] of [redacted] Clinic. This has led to you experiencing significant anxiety reduction since receiving the prescription. One outcome of this has been a reduction of smoking cigarettes from 1 packet per day (approximately $210 per week) to 1 packet every 5 days ($45 per week);
(d) Despite your non-compliance with the SO pertaining to drug use, your overall engagement with supervision appointments and treatment provided by FIS remains appropriate. You remain committed to both supervision and treatment;
(e) In an Incident Report recording the prescription of medical cannabis[34] it was noted: 'He appropriately engages with this service on a weekly basis for the purpose of supervision. Regarding treatment, he attends fortnightly appointments with his clinician from Forensic Intervention Services ...' - '[MTE] attends all supervision appointments as directed, and remained appropriately engaged with Forensic Intervention Services on a fortnightly basis.' An Incident Report dated 10 February 2023 regarding the offence which is the subject of the fifth breach proceeding states: 'He appropriately engages with this service on a weekly basis for the purpose of supervision. Regarding treatment, he attends fortnightly appointments with his clinician from Forensic Intervention Services';
(f) You have established a relationship with your current female partner and you consider this a significant positive step in the journey towards reintegration as an adult into the community after so many years in prison;
(g) You have made a concerted effort to engage in some community events including a concert in [redacted] in early March 2023, visits to art museums and cultural events (including Lunar New Year) recently. Through your partner, you recently assisted one of her friends to move house;[35] and
(h) You have been offered to participate in a two day cultural camp in May 2023 subject to permission from the Post Sentence Authority ('PSA').
44 It was also submitted that by way of context to the current charges that you had cycled through various medication regimes to manage your chronic rheumatoid pain and anxiety, but these had been largely ineffective or caused side effects such as overwhelming drowsiness. You had resorted to cannabis to experience relief from both pain and anxiety. You instructed Mr de Vietri that you had no intention of using methamphetamine in the future and future drug tests will reflect negative results for this substance. That has been the case since 6 January 2023.
45 Further, because you understood that it would be difficult for you to remain abstinent from cannabis, you consulted a doctor about obtaining a prescription for medicinal cannabis, which was then approved.[36] That prescription is subject to the guidance of a doctor.
46 Mr de Vietri submitted that your openness with the PSA, Corrections Victoria workers and SCMs, clinicians at FIS and police officers from SOSRU - involving self-reporting of substance use - is what led to the directions to undergo urinalysis, and ultimately to the current charges. Nevertheless, it was submitted that you are strongly motivated to continue with this openness in order to maintain good relations with your supervisors and ultimately transition off the SO.
47 In elaborating on matters touching on your path towards rehabilitation, Mr de Vietri submitted that you gain a lot of benefit from weekly sessions with your SCM, Ms [L], even though some of the charges arose from you reporting your cannabis use to her.
48 Ultimately, Mr de Vietri submitted that each offence relating to the use of cannabis could be dealt with by a fine, and that a modest financial penalty should be applied to those charges. Whilst a larger potential penalty was available for the use of methamphetamine, it was submitted that a fine was still similarly appropriate. In respect of the bail offences, Mr de Vietri also submitted that fines were appropriate. Further, in relation to the contravention of the SO offences, it was said that a non-custodial disposition[37] was also appropriate in the circumstances of this case.
49 Mr de Vietri placed reliance on a submission as to the relatively low objective gravity of the offending and noted that included in the overall purposes of sentencing was the importance of fostering rehabilitation. These matters meant that even a short custodial disposition was outside the appropriate range. He noted that you had 2 days of pre-sentence detention when you were placed in custody on two of the occasions when you were arrested for the breaches. If the Court were considering a custodial disposition, Mr de Vietri indicated that the Defence would seek a deferral of sentence for a period of some months, to allow you a further opportunity to demonstrate renewed commitment to abiding by the conditions of the SO.
50 Mr de Vietri did, however, accept that contraventions of SOs are generally considered to be serious matters (since non-compliance undermines the regime's effectiveness and puts the community at risk). Nevertheless, he submitted that the breaches, whilst repeated, were at the lower end of the range of seriousness,[38] involving 'fairly harmless' cannabis use and an isolated instance of methamphetamine use. The fact that repetition of the breaching behaviour continued after warnings was likely explained by drug dependency, rather than an expression of disregard for the authority of the Court's orders or that of your supervisors.
51 At the outset I should state in articulating my reasons for sentence that I have not had regard to the fact that you are subject to an SO under the Act; except to the extent that the existence of the SO and its conditions may be relevant to the conditions of any sentence to be imposed.[39]
52 Sentencing is a discretionary exercise, guided by the relevant maximum penalties and consideration of the seriousness of the prohibited conduct, and paying heed to the purposes of sentencing encompassed in the Sentencing Act. Within that framework I have considered where your offending is to be placed in terms of objective gravity, taking into account the significant overlap between the offences comprising each proceeding. I have also had regard to your subjective circumstances and your prior history.
53 I will refer to the key principles relied on by the parties.
54 Mr de Vietri emphasised the principle of parsimony, noting that the current offending represents your first appearance for contravention of your SO (and first appearance for criminal offending) since being released from prison; so that a non-custodial sentence should be imposed which would give effect to punishment and denunciation whilst still encouraging rehabilitation.
55 With respect to this point, I embrace the recent remarks of Croucher J in XG extracted above. The importance of giving weight to the principle of parsimony leads me to conclude that imprisoning you on this occasion would represent an approach that is more severe than that which is necessary to achieve the sentencing purposes expressed in s 5(1) of the Sentencing Act, and would risk endangering an established path towards rehabilitation.
56 Although your offending involved repeated occasions of cannabis use between December 2022 and February 2023, and one occasion of methamphetamine ingestion leading to repeated interviews with SOSRU officers, the fact remains that you have not previously come before the Court for a breach offence, or indeed for any offence since the SO was imposed by Champion J in May 2020. This matter, combined with the fact that the breaching conduct stemmed from behaviour at the lower end of the scale of seriousness,[40] leads me to conclude that there are less severe sentencing options that are capable of achieving the purposes of sentencing under s 5(1) of the Sentencing Act.
57 The Defence submitted that I should be alive to the significant degree of overlap between the charges of using drugs, contravening the SO, and breaching bail, citing the judgment of Nettle JA in the Court of Appeal's decision in Loader v The Queen,[41] and that, given the nature of relapse in substance abuse, all of the offences before the Court form a related series. I accept that submission, although I regard the methamphetamine ingestion as being in a different league to the cannabis use and related offending.
58 As previously mentioned, you have spent two days of pre-sentence detention - what I note has previously been described as 'dead time' or 'Renzella time'[42] - in custody for the charges upon which you will be sentenced today. I take that into account for the purposes of balancing the competing considerations of fairness and imposing a sentence that is just and appropriate in all of the circumstances.[43] It is significant that the second full night you spent in custody was just before your medicinal cannabis prescription was put in place.
59 Whilst counsel mentioned the sentencing purposes of punishment and denunciation they were not elaborated on in any detail, but I accept these purposes are relevant to your sentence.[44]
60 I accept, for the reasons advanced by Ms Brown, that general deterrence is a relevant sentencing purpose in order to deter other offenders on SOs from contravening them. However, that does not lead to the conclusion that a prison sentence is the only means of achieving that purpose.
61 I also accept, as submitted by Ms Brown, that specific deterrence has a role to play, given the repetitive nature of the offending. This was not disputed by your counsel, Mr de Vietri, who underscored the need to ensure that you remain compliant with your SO.
62 Regarding both general and specific deterrence, I acknowledge what was said by Tinney J in DPP v Hollow,[45] as it also appears apt to your circumstances:
As was stated by Williams J in Acting Secretary to the Department of Justice v McKane:
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.[46]
You, yourself, must be deterred from further breaches of the SO. It was put on your behalf that the three days you spent in custody on remand, whilst modest, themselves serve as a measure of specific deterrence.[47] Hopefully that is the case. You may see it as a taste of what would be in store for you should you offend again.[48]
63 More generally, in the context of the Defence's submissions (outlined below) that the imposition of a pecuniary penalty is sufficient in this case, I note the following statement of principle articulated by the learned authors of Fox & Freiberg's Sentencing: State and Federal Law in Australia:[49]
So long as the level of fine available to the court is sufficiently high to accommodate the gravity of the crime, a fine may legitimately be used as the sole sanction for an imprisonable offence ... 'Where the fine is appropriate it should not be used merely as a soft option but should have some real sting in it from the point of view of the offender and be sufficiently punitive to act as a general deterrent'.[50]
64 After spending more than two decades in prison, the threat of future imprisonment may well have particular significance for you. As mentioned earlier, I have also taken into account the fact that you spent two days in custody when being held in relation to the breach proceedings as discussed earlier. That should have served as a further reminder to you of the risks of continued breaches in the future.
65 I accept, for the reasons advanced by Ms Brown, that community protection is a relevant sentencing purpose in light of the protective purposes of the Act from which the Serious Offender regime is derived. Mr de Vietri accepted that continued breaches of the Act could increase the risk you would pose to the community, should your lifestyle become unstable due to habitual and/or escalating illicit drug use.
66 Aspects of community protection (and also deterrence) were linked by counsel for both parties to consideration of the import of s 5(2BD) of the Sentencing Act. Mr de Vietri in particular emphasised the turnaround in your behaviour since the reintroduction of the GPS monitoring bracelet. However, this change in behaviour was also roughly proximate in time to the inception of medically prescribed cannabis. There is therefore insufficient evidence currently before the Court to unpack what effect the bracelet vis-à-vis the cannabis prescription has had on your behaviour, and so it is unnecessary to determine whether the bracelet is an admissible consideration to take into account in this regard.
67 Despite the challenges that offenders often face upon release from a lengthy prison sentence, you have managed to secure your own independent housing contract and you have settled into the supervision regime well. These achievements might well be jeopardised if I were to impose a sentence of imprisonment on you at this juncture. In those circumstances, I adopt what was said by Croucher J in XG and find that the imposition of a prison sentence would more likely than not thwart the longer-term aim of rehabilitation in your case.
68 Although the Crown accepted that your rehabilitation was in the community's interest, submissions on this point were most clearly articulated by your counsel as follows:
In this case, giving weight to rehabilitation means allowing [MTE] to work through his drug use issues in the community by using all the supports that he has around him in place ... imprisonment brings with it a great risk of disruption in [MTE]'s hitherto remarkably positive supervision order journey. Since the fifth breach offence, there has been a period of six weeks during which [MTE] has remained steady and demonstrated full compliance with the supervision order conditions and positive engagement with his professional and social supports.
...
A term of imprisonment (depending on its length) can also have the unfortunate destabilising effect of undermining the availability of appropriate independent housing. A term of imprisonment can break social development (e.g. partnership, developing community ties, developing pro-social habits) and thereby retard rehabilitation in the longer term.[51]
69 I accept Mr de Vietri's submissions that your rehabilitation to date has been largely positive until the spate of drug use related offences from December 2022 to February 2023. This is particularly so given that your SO commenced during, and was undoubtedly affected at its outset by, the trying circumstances of the COVID-19 pandemic, a factor to which I will return below.
70 One of the clearest overarching considerations referable to your case, is the importance of not jeopardising the progress you have made in re-integrating into the community after a lengthy prison sentence. It cannot be in the community's interest for you to risk losing your housing, having your therapeutic, supervisory and counselling relationships interrupted and positive social networks fall apart as a result of re-imprisonment.
72 In light of that principle I am not minded to accept the characterisation of your offending as representative of 'low objective gravity', as was urged upon me by counsel for the Defence. Repeated breaches of a SO are objectively serious. However, the nature of the offences underlying the breaches were at the lower end of seriousness - at least inasmuch as concerns use of cannabis, to which a majority of your charges corresponded - apart from the occasion when a sample you returned showed a positive result for methylamphetamine.
73 Regarding the overlap between the offences I must also be conscious of the risk of double punishment where each contravention involves the same foundational event (ingesting an illicit substance) but triggers three distinct offence provisions. However, I accept that the breach offences do involve separate and distinct criminality from the drug offences as do the bail offences. I note that the risk of double punishment is not likely to arise where an aggregate sentence is imposed, because in doing so a court is considering an offender's conduct as a whole.[54]
74 I have had regard to the Defence's table of comparative cases, and related case law referred to me by the parties in submissions.[55]
75 Whilst the relatively small sample of cases that have dealt with breaches of SOs have left open that first-time offence contraventions of non-restrictive SOs are often met with fines, this case does involve repeated breaches although it is your first appearance before the Court for contravention of the SO. I have taken into consideration that the charges largely came about through your cooperation with attending supervision appointments, self-disclosures and cooperation with testing. Whilst the offending overall is not of low objective gravity, I am cognisant of the overlap between the offences and the confined time-frame in which they occurred as against the lengthier period over which the SO has been on foot without any such contraventions.
76 You were born in 1977 and are now aged 45. I will not repeat your personal circumstances and criminal history preceding your extended incarceration, as they have been set out at length in previous judgments of this Court. You were, however, ultimately sentenced to a term of imprisonment of 23 years for your index offending, and have thereby spent the vast majority of your adult life in prison. You were released from prison on 27 January 2020 and became subject to an interim SO.
77 All things considered, you have adjusted fairly well to the terms of your SO and to life after prison. Prior to the drug-related circumstances which have now brought you before this Court, you have relevantly self-reported in respect of other matters of concern to your supervisors. The chronology tendered by Mr de Vietri underscores the fact that, but for the breaching offences, up until this point, you have been progressing well. Given your age and the period of your adult life spent in prison it is open to regard your overall progress in adjusting to life in the community positively.
78 You are maintaining a relationship with a new female partner, and are interacting in a pro-social manner with members of the community, as illustrated by the letter of support from [redacted] tendered on your behalf. You are also speaking candidly to and engaging positively with your treating staff; that positive progress has already been largely summarised at [43] of this sentence above and I need not repeat it here, but I take it all into account in passing sentence upon you now.
79 Mr de Vietri submitted that I should take into account your self-reporting leading to the detection of the offending, noting that you cooperated with police each time you were arrested and interviewed.
80 Mr de Vietri also submitted that you should receive the full benefit for your early plea of guilty, noting its significance in at least the following ways:
(a) It avoided the necessity for a contest before the Court and had a utilitarian benefit;
(b) It involved acceptance of legal responsibility and a willingness to facilitate the course of justice; and
(c) It demonstrated remorse and represented recognition by you of wrongdoing.[56]
81 I accept that you are entitled to the full benefit for a plea of guilty. Notwithstanding that no evidence specifically directed to your remorse was, as I understand it, placed before this Court on the plea, I consider your guilty plea to be indicative of a level of remorse in combination with your candour in your dealings with police and other authorities in the course of admitting to the contraventions of the SO.
82 Mr de Vietri directed me to the impact of COVID-19 on matters relating to sentencing in your case. I consider it relevant, in light of this Court's previous jurisprudence on the topic,[57] that the path of your rehabilitation was altered by the changes wrought by COVID-19 and that despite commencing your SO in 2020 you are only recently getting greater opportunities for face to face meetings. Your plea of guilty should similarly be viewed favourably in light of the utilitarian advantages to the Court of pleas of guilty post the pandemic.
83 It is relevant that the early period of your treatment and rehabilitation has likely been more challenging than would ordinarily be the case. Like the accused in DPP v SS (No 3),[58] you have not necessarily had access to educational and other programs, visits and supports in the same way as would ordinarily be the case for much of your early rehabilitation journey since being released from prison.[59] Because of these challenges I am inclined to view your lack of breaches of the SO prior to December 2022 more favourably.
84 I have balanced the objective gravity of your offending against the fact that these proceedings collectively represent your first appearance before this Court for breach of your SO since being released from prison; the relatively good progress you have been making in your rehabilitation prior to these contraventions; my finding that your prospects for rehabilitation appear otherwise favourable; and the importance of not disturbing that (currently favourable) path of rehabilitation. That balancing exercise has therefore led me to conclude that the imposition of an aggregate financial penalty would be appropriate in all of the circumstances of this case, taking into account your currently limited means.
86 In light of the foregoing remarks, I hereby sentence you as follows.
87 In respect of all of the charges convictions will be entered in respect of each offence.[60] I have decided to impose an aggregate sentence for all of the offences, as I consider that the offences are all founded on the same facts or form part of a series of offences of the same or similar character.
88 Therefore, for each of the offences you are convicted and fined an aggregate sum of $1,800.[61]
89 In arriving at that conclusion, and levying the appropriate quantum of the fine, I have taken into account, as the law requires of me,[62] your currently limited financial circumstances. It is important that - where an offender has completed a very lengthy sentence of imprisonment, and has not had the opportunity to accumulate assets or some other kind of financial buffer against impecuniosity - that any fine imposed by the Court should recognise these challenges appropriately. Mr de Vietri has sought that you should receive a stay of at least three months in respect of the payment of a fine, and I have ultimately determined to grant a stay of six months. In this regard I encourage you to contact the relevant authorities and make enquiries in respect of an instalment plan or further additional time in which to comply with the fine I am imposing, if required.
90 Since s 6AAA of the Sentencing Act does not compel a declaration of sentence that would have been imposed - had you not pleaded guilty - in circumstances where an aggregate fine of less than 20 penalty units is imposed, I decline to make such a declaration here.
91 MTE - without prejudging any future matters which may necessarily bring you before this or other courts again you need to understand that any breach of a SO is objectively serious. You cannot expect the same degree of leniency should you breach your SO in the future.
[1] I have previously extended a non-publication order in respect of the accused's supervision order proceedings in this matter: refer to RE MTE (No 4) [2021] VSC 622, [6] n 7. The present sentencing remarks also cohere generally with the comments of Champion J in Re MTE (No 3) [2020] VSC 646, [8] regarding the appropriate way in which to publish written reasons in this matter.
[2] Re MTE (No 2) [2020] VSC 356.
[3] Re MTE (No 4) [2021] VSC 622.
[4] As explained further below, where the Court is exercising summary jurisdiction pursuant to s 169 of the Serious Offenders Act 2018 (Vic) ('the Act'), the maximum term of imprisonment is 2 years for a single offence or 5 years cumulatively for multiple offences.
[5] These matters were admitted by MTE: refer Transcript of Proceedings, DPP v MTE (Supreme Court of Victoria, S ECR 2023 0004, S ECR 2023 0009, S ECR 2023 0014, S ECR 2023 0021, S ECR 2023 0026, Jane Dixon J, 24 March 2023) 6 [16]-[19] ('Transcript').
[6] Mr de Vietri noted in oral submissions before the Court that his instructors had confirmed the contents of this letter with [redacted], despite its being unsigned: refer Transcript (n 5) 8-9.
[7] This predates the commencement of the relationship with MTE's new female partner.
[8] Mr de Vietri clarified in oral submissions that Ms [L] remains MTE's corrections officer or SCM: refer Transcript (n 5) 18.
[9] Re MTE [2020] VSC 243.
[10] As defined in s 3 of the Act (n 4).
[12] Pursuant to s 174(1) of the Act (n 4).
[13] See Sentencing Act 1991 (Vic), ss 113, 113B ('Sentencing Act').
[14] Ibid s 112A(1).
[15] [2019] VSC 466 ('SM').
[16] Ibid [13] (emphasis in original).
[19] [2023] VSC 127 ('XG').
[20] Ibid [60]-[62] (citations omitted).
[22] Relevantly citing, in this regard, Acting Secretary to the Department of Justice v McKane [2012] VSC 459, [21] (Williams J).
[23] (2019) 277 A Crim R 304 ('Price').
[26] Re MTE [2020] VSC 243.
[27] Re MTE (No 2) [2020] VSC 356.
[28] Note, in this regard, the comments of Taylor J in R v TA [2021] VSC 479, [13].
[29] Including Re MTE (No 4) [2021] VSC 622 and Re MTE (No 2) [2020] VSC 356.
[30] Citing, in this regard, Price (n 23) 312 [45], 313 [50].
[32] This was a third measure in place by way of MTE's rehabilitation, which was not a required condition of MTE's SO but was rather as a result of his relapse which is the subject of the current proceedings: refer Transcript (n 5) 22.
[33] On 27 February, 6 March and 20 March 2023.
[35] This is referred to in the letter of support provided by [redacted].
[36] Mr de Vietri also noted in oral submissions that there had been no further contraventions by MTE of his SO since his medical cannabis prescription had been secured: refer Transcript (n 5) 29.
[38] Contrasting, in this regard, the most serious category of contravention said to involve further offending by of serious sexual or violence offences, and citing by way of example Price (n 23).
[40] (apart the offences concerning methamphetamine).
[41] [2011] VSCA 292; (2011) 33 VR 86 ('Loader'). I did not otherwise understand counsel for the Defence to address me in terms responding to the Crown's submissions on double punishment, beyond the relevant discussion extracted in Loader.
[43] See, eg, Judicial College of Victoria, Victorian Sentencing Manual (4th ed, 2022) 187 [8.6.2] and the cases cited there at n 1835 ('Sentencing Manual').
[44] As articulated in s 5(1) of the Sentencing Act (n 13).
[45] [2022] VSC 602 ('Hollow').
[46] This passage was also urged upon me in the Crown's submissions on sentence, although particularly in the context of Hollow (n 45) as extracted above I think it has equal significance on the inverse argument contended for by the Defence.
[47] Recall that MTE has served two days of pre-sentence detention as explained earlier above.
[48] Hollow (n 45) [17]-[18] (citations omitted).
[49] (online at 28 March 2023) ('Fox & Freiberg').
[51] Outline of Defence Submissions for Plea, 5 [15], [16].
[52] [2012] VSCA 137; (2012) 36 VR 382 ('Lecornu'). I note, however, that in Lecornu the relevant offender was subject to an extended supervision order under the Serious Sex Offenders Monitoring Act 2005 (Vic), being a different statutory regime to the one now under consideration in this case.
[54] Sentencing Manual (n 43) 60 [3.4], citing Saxon v The Queen [2014] VSCA 296, [34]-[36].
[55] See, eg, XG (n 19) and SM (n 15) which both included drug-related contraventions of SOs.
[56] I interpolate without criticism that these submissions appear to cohere closely with the recent judgment of Tinney J in Hollow (n 45) [16].
[57] See, eg, Worboyes v The Queen [2021] VSCA 169; (2012) 96 MVR 344, 350-7 (Priest, Kaye and Forrest JJA) ('Worboyes'); DPP v SS (No 3) [2021] VSC 870, [31] (Tinney J).
[59] Ibid [31] (Tinney J). See also Worboyes (n 57).
[60] Refer as summarised in table form at [3] of this sentence above.
[61] Pursuant to s 51 of the Sentencing Act (n 13) and the statutory provisions summarised in the table at [4] of this sentence above.
DPP
MTE [2023] VSC 162
(2012) 36 VR 382
(2011) 33 VR 86
(2012) 96 MVR 344