Crown v Accused

2 On 2 February 2023 you were placed on an SO for a period of four years by Justice Beale.

3 It was a condition of the SO that you "must not use or possess prohibited drugs (including synthetic drugs), obtain drugs unlawfully or abuse drugs of any kind".

4 Pursuant to the SO, you reside at supported accommodation at Bundoora Lodge, in Bundoora. On 2 October 2023 you began an intensive four‑week 'DayHab' rehabilitation program located in Boronia, to assist with your drug use. Support staff were provided to assist you to travel between your residence and the place where the program was being conducted.

5 On 24 October 2023 you refused to attend the course, explaining to Corrections Victoria Specialist Case Manager Ashlea Anderson that, some days before, you had hurt your back and were experiencing pain after going white‑water rafting arranged as part of the rehabilitation program. It appears that you had previously self‑reported using illicit substances to help with the management of your back pain which is said to be a chronic condition.

6 It was reported that on 23 October 2023 your presentation had been "manic", and "not [your] baseline", although you were not said to be aggressive.

7 As a result of the above circumstances, it was reasonably suspected that you had contravened the above condition of your SO by consuming drugs. Accordingly, you were directed to undergo urinalysis, which you did, with the subsequent analysis revealing a positive reading for methylamphetamine, and amphetamine as a byproduct, as well as some prescription drugs.

8 With respect to the current charge, it is accepted by the prosecution that the evidence does not reveal that you used methylamphetamine on more than one occasion.

9 On 26 October 2023 you were arrested and interviewed by police. During the interview you stated that you had hurt your back while kayaking some days previously, that the injury related to a long‑standing back injury, that you had been in so much pain that your prescribed pain medication did not assist, that on the evening of that day you injected a point (.1 g) of methylamphetamine which you had acquired on your way back from kayaking in order to help with your pain, and that you did not use methylamphetamine on any other occasion between 19 and 24 October 2023.

10 As a consequence, you were brought before the Heidelberg Magistrates' Court on 30 October 2023 and remanded in custody to appear at the Supreme Court.

11 The prosecution made an offer to resolve this matter on 31 October 2023, and that offer was accepted before the first directions hearing in the Supreme Court on 2 November 2023. You applied for the charge to be heard and determined summarily pursuant to section 174 of the SO Act. That application was unopposed by the prosecution, and has been granted.

12 The prosecution concedes your plea of guilty has been entered at the earliest opportunity.

13 You have been in custody since your arrest on 30 October 2023. Pre‑sentence detention at the time of the plea in this matter, up to but not inclusive of 9 November 2023, was 10 days. It is now 22 days.

14 In the present case the maximum term of imprisonment, where the contravention of the SO is heard and determined summarily, is two years imprisonment, and/or a maximum fine of 500 penalty units.

15 On 27 June 2013, you were sentenced by Justice Beach to 10 years and three months' imprisonment with a non‑parole period of seven years and three months' imprisonment on charges of intentionally causing serious injury and false imprisonment.[1] Briefly, the prosecution case was that along with two other men, you had engaged in violent torturous conduct against another person in the context of use of drugs, whereby the victim received very significant injuries involving various parts of his body. The assaults included the use of a knife, placing scissors into the mouth of the person and cutting the victim's cheek, attempting to tear off the victim's right nipple, carving words on the victim's back, kicking the victim in the head and burning him with an ice pipe on a number of occasions, as well as other violent conduct, including choking. The sentencing judge described the activity as amounting to a terrifying and painful ordeal over a period of time, in which assaults you were involved in as an active participant.

16 On 21 October 2022, shortly before the completion of your sentence, an application was made by the Secretary to the Department of Justice and Community Safety for an SO. Justice Beale made an interim SO on 21 October 2022. On 2 February 2023 his Honour placed you on an SO for a period of four years.

17 Thereafter, across 2023, you have appeared before this court on the following occasions:

(a) on 10 February 2023, Justice Beale sentenced you to 14 days' imprisonment for one charge of contravening the interim SO by using methylamphetamine;

(b) on 17 March 2023, Justice Croucher convicted and discharged you for one charge of contravening the SO by using methylamphetamine;

(c) on 14 August 2023, Justice Jane Dixon sentenced you to 13 days' imprisonment for one charge of contravening the SO by using methylamphetamine;[2] and

(d) on 6 September 2023, Justice Croucher sentenced you to 14 days' imprisonment for one charge of contravening the SO by using methylamphetamine.

18 Accordingly, you now come before this court on the fifth occasion since the SO was made on 2 February 2023. Each contravention has been of the same or very similar nature, involving the use of methylamphetamine.

19 Counsel for the Director of Public Prosecutions ['the DPP'] filed detailed written submissions, which were supplemented by oral argument during the proceedings. Briefly put, counsel submitted that the court should impose a sentence of imprisonment upon you that exceeds the time served on remand.

20 It was argued that the contravention of an SO is a serious matter, although counsel noted that drug‑related contraventions are generally considered to be less serious than other types of contraventions.[3] However, it was submitted that yours is a relatively serious example of such a contravention because of how recently you were last before the court in relation to similar conduct. Thus, it was submitted that your moral culpability for this offending is relatively high given your recent prior history, and your awareness of the link between your index offending and substance abuse. At the same time, it was acknowledged that verbal threats and aggression that were a feature of your fourth breach of the SO were not present in this instance.

21 It was also argued that although you have used methylamphetamine for pain relief, you know that you have other legitimate pain relief options available to you.

22 As to deterrence from committing future similar conduct, it was submitted that in your case general and specific deterrence play an important part in the sentencing exercise. It was pointed out that you have now been warned by this court on three previous occasions that further contraventions will likely result in you being brought back before the court and sentenced to imprisonment perhaps for longer and longer periods. Furthermore, it was argued that where SO contraventions are drug‑related, repeated drug‑related SO contraventions are ordinarily required before even a short period of imprisonment is imposed. It was argued that second or subsequent SO contraventions are commonly met with terms of imprisonment.

23 Counsel also addressed protection of the community, being a primary purpose of the SO Act. Counsel submitted that given your drug use is closely linked to your index offending, community protection assumes a particularly important role.

24 As to the question of rehabilitation, it was acknowledged to your credit that you have completed the 'DayHab' program on 28 October 2023, although it was submitted that your completion of the program was not an unqualified success.

25 Finally, it was argued that you have had ample time to adjust to the requirements of your SO, and that given how frequently you have been before the courts on breach proceedings, you are well aware of the requirements of the order.

26 Counsel appearing on your behalf relied on a written submission, also supplemented by oral argument. In short, it was pointed out that you have a long‑standing mild intellectual disability, that you are a single man with children that you do not now see, that you have had a history of drug abuse, and use methylamphetamine on a limited basis.

27 It was pointed out that you have pleaded guilty to the offence before the court, and that your plea was entered at a very early stage. Importantly, it was submitted on your behalf that the offending now before this court did not involve any further violent offending associated with your spasmodic drug use.

28 Counsel appearing on your behalf conceded that in your case a term of imprisonment is warranted, however it was submitted that this should be composed of time served on remand together with any Renzella[4] time available to you.

29 In his written submissions, counsel for the DPP addressed the question of Renzella time in some detail, referring to remarks made about this issue by each of the previous sentencing judges. It appears that views may have differed as to the application of Renzella time to your situation, and in the end, it is not entirely clear to me whether that time served has in fact been taken into account. In the circumstances, I do not propose to go into a detailed analysis of the status of the time you have arguably served on this basis. Ultimately, it was submitted on behalf of the DPP that it is open to this court to consider that it still has discretion to take that time into account in a general non‑mathematical way, and that is the way I propose to act.

30 Thus, I propose to give you the benefit of that period of time in assessing the appropriate sentence to be passed upon you for this contravention.

31 In your favour, I take into account that you suffer from a mild intellectual disability. The prosecution has not satisfied me that your offending occurred in circumstances other than you were attempting to relieve chronic pain following physical activity. I therefore accept that you used the drug to relieve pain. At the same time, it is clear that you have legitimate medications available to assist you in this regard. You must move to using legal means by which to medicate yourself, if you wish to rehabilitate, and move on with your life. I also take into account in your favour that your offending was not associated with any acts of aggression or violence. On the other hand, as pointed out, one of the primary objectives of the SO Act is to protect the public, and I must remain mindful of that. You were also well aware of the consequences of further breaches of the kind that occurred on this occasion, having been before the court on four previous occasions since February 2023. Yours is thus repeat offending, albeit I acknowledge that your rehabilitation with regard to the abuse of drugs occurs in an overall context that is seldom straightforward.

32 In her sentencing reasons of 14 August 2023, Justice Jane Dixon referred to your second contravention of March 2023 in which Justice Croucher made it known to you that the likely outcome of continued breaches of the SO would be longer and longer terms of imprisonment being imposed. Her Honour then sentenced you to 13 days' imprisonment. Later again, on 6 September 2023 you were sentenced on a further occasion by Justice Croucher for another similar breach, wherein his Honour sentenced you to 14 days' imprisonment for breaching the SO by using methylamphetamine.

33 All of the above considered, I am now obliged to sentence you in respect of a fifth breach of your SO in the approximate nine months since 2 February 2023. Each contravention has been for similar offending. In light of this history, in my opinion the principles of general deterrence and special deterrence emerge as increased factors of significance, as does your moral culpability. By now, you well understand that what you are doing is wrong, and as a result, you understand the consequences of your continued breaches in the same way. Having been clearly warned about the possible consequences, you must now expect increasing sentences to be passed should you continue to act in the same way as you have previously. Put simply, you are not beyond understanding that a message must be sent to you that you must comply with the conditions of your SO, and that similar breaches as have occurred five times this year must cease.

34 Nothing put before the court suggests you are incapable of exercising free choice in using methylamphetamine in the way that you have. Whilst the use of this drug on an occasional basis might be seen to not generally justify a sentence of imprisonment, as I have noted, this breach cannot be seen as an isolated event and indeed represents the fifth time you have offended in a similar way, within the relatively short time span of the SO made by Justice Beale. Breaches of SOs are to be taken seriously as they are orders made to, amongst other things, protect the community. SOs must be obeyed and breaches of them must be understood to bring about significant consequences. Your SO was imposed relatively recently, and you cannot go on breaching it in the way you have been doing. It does nothing for your rehabilitation.

35 Taking all matters into account in your favour, as well as factors in aggravation of your offending, on the summary offence of breaching the SO contrary to section 169 of the SO Act, you are convicted and sentenced to 30 days' imprisonment.

36 I declare that a period of pre‑sentence detention being 22 days be reckoned as having been served as part of this sentence.

37 As stated above, I make it clear that I have taken into account any Renzella time served by you in a general way as part of the synthesis of factors relevant to the assessment of the appropriate sentence.

38 Pursuant to section 6AAA of the Sentencing Act 1991, I declare that but for the plea of guilty the court would have otherwise imposed a sentence of 40 days' imprisonment.

[1] Secretary to the DOJCS v PT [2023] VSC 64R.

[2] DPP v XG [2023] VSC 489.

[3] Director of Public Prosecutions v DW [2023] VSC 143 [28] (Lasry J); Director of Public Prosecutions v SM [2019] VSC 466 [13] (Elliot J).

[4] R v Renzella [1997] 2 VR 88 ('Renzella').