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 You have since appeared before this court on six previous occasions for breaching your SO in the same fashion.

5 Pursuant to the SO, you reside at supported accommodation at Bundoora Lodge, in Bundoora.

6 On 6 May 2024 at 1:42pm, your Corrections Victoria Specialist Case Manager ['SCM'] Ashlea Anderson received a telephone call from a Bundoora Lodge House Manager. Bundoora Lodge staff had made the certain observations about your presentation throughout that day, including that you had been falling asleep and difficult to rouse that day, and forgetful, having left a bucket of water that was filling up from a tap, resulting in an overflow of water in a laundry area. Your SCM, Ms Anderson, also received a phone call from the Electronic Monitoring Service that afternoon indicating your electronic monitoring bracelet had generated a 'No Communications' Alert, suggesting there had been nil to limited movement of the device for an extended period of time. After consultation between staff, Triple Zero was ultimately called for medical advice, given concerns about your presentation.

7 Bundoora Lodge staff ultimately woke you up, and no further medical intervention was considered necessary. The next day however, in consultation with Principal Practitioner Ms Emma Watts and the Post Sentence Branch, SCM Anderson formed reasonable grounds to suspect you had contravened your SO by consuming drugs, and directed you for urinalysis.

8 The sample returned positive results for methylamphetamine and amphetamine. The prosecution has submitted that it is common for amphetamine to appear in the body as a by‑product of the metabolisation of methylamphetamine, and it is therefore not alleged that you used any prohibited drug other than methylamphetamine, nor that you used methylamphetamine on more than one occasion.

9 On 9 May 2024 you were arrested and declined to be interviewed by police.

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

11 The matter resolved prior to the first directions hearing at this court on 16 May 2024.

12 You applied for the charge to be heard and determined summarily pursuant to section 174 of the Serious Offenders Act. That application was unopposed by the prosecution, and has been granted.

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

14 You have been in custody since your arrest on 9 May 2024. Pre‑sentence detention at the time of the plea in this matter, up to but not inclusive of 24 June 2024, was 46 days. It is now 75 days not including this day.[1]

15 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.

16 A summary of your background and criminal history is set out in previous reasons of this court.[2]

17 Briefly, 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.[3] The prosecution case was that you, along with two other men, 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.

18 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.

19 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;[4]

(c) on 14 August 2023, Justice Jane Dixon sentenced you to 13 days' imprisonment for one charge of contravening the SO by using methylamphetamine;[5]

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

(e) on 21 November 2023, I sentenced you to 30 days' imprisonment for one charge of contravening the SO by using methylamphetamine;[7] and

(f) on 5 April 2024, Justice Tinney sentenced you to 60 days' imprisonment for one charge of contravening the SO by using methylamphetamine.[8]

20 Accordingly, you now come before this court on the seventh 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.

21 Counsel for the Director of Public Prosecutions ['the DPP'] filed written submissions, which were supplemented by oral argument during the proceedings. The court was also availed of the previous sentencing remarks made by members of this court in relation to your previous breaches. Briefly put, counsel submitted that the court should impose a sentence not exceeding time served.

22 Following the first day of hearing of this matter, it was adjourned part‑heard to allow time for further inquiries to be made about where you would be returning to and what the plan was for your treatment following the completion of any sentence for the current offending. Subsequently, the prosecution filed a residential placement letter from Seahaven dated 10 July 2024, a Nicholson House Environmental Scan Report dated 15 July 2024, a 'Special Report' from Corrections Victoria dated 15 July 2024, and a Direction Report of the Post Sentence Authority dated 18 July 2024.

23 Submissions were made surrounding the updated Special Report, which contained a recommendation from the Post Sentence Branch to the Post Sentence Authority about steps to be taken in your case. Emerging from this report was that Nicholson House was the recommended place of residence for you, with a further recommendation for relaxation of the accompaniment condition of the SO to afford you to the opportunity to transition to the community without accompaniment. The placement proposed at both Nicholson House or Seahaven:

include a 24/7 staffing regime that would continue to provide an ongoing capacity to monitor [PT's] behaviours, presentations and engagement with stakeholders. In addition to the support available within these proposed residences, [PT] would be able to access outreach support program, forensic case workers, ongoing engagement with ACSO for five hours weekly, and ongoing outreach with his NDIS provider by ACSO Care.

24 It was emphasised that the Post Sentence Authority has since made a direction as of 18 July 2024 that you are no longer required to be accompanied by an approved person when absent from your residence. It was submitted that the aim behind this was to ameliorate a sense of despondency and hopelessness you have expressed about the level of supervision and accompaniment you were previously subject to. The relaxation of this condition was also designed to increase your employment prospects.

25 In essence, the work undertaken whilst you have been in custody has established a framework for where you will reside and the treatment you will be provided once released into the community. In a practical sense the prosecution indicated you would spend a night at Nicholson House, before travelling to Seahaven, all of which would be organised by the Post Sentence Branch.

26 The prosecution submitted that your prospects of rehabilitation, which it initially indicated were poor, were to be assessed as guarded in light of this framework. The application of Verdins and the objective gravity of the offending were also dealt with by the prosecution in the written submissions filed, dated 20 June 2024, which I have read and considered, and which I mention briefly below.

27 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.[9] However, it was submitted that the condition of the SO that you have repeatedly breached is a central condition of that order, particularly given one of the reasons you are on an SO in the first place is because of the connection between your methylamphetamine use and the index offending. Adding to the gravity of the offending is how recently you completed your last sentence for similar conduct. At the same time, it was acknowledged that you did not engage in problematic behaviour as a result of your drug use on this occasion.

28 As to deterrence from committing future similar conduct, it was submitted that in your case general and specific deterrence loom particularly large. It was pointed out that you have now been warned by this court on a number of 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, and you were capable of deciding not to consume methylamphetamine, and capable of weighing the consequences of your offending. It was submitted that, notwithstanding your intellectual impairment and substance abuse disorder, your moral culpability for this offending is relatively high.

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

30 Counsel appearing on your behalf relied on a written submission dated 19 June 2024, also supplemented by oral argument. A number of expert reports and other documents were also filed on your behalf, namely:

(a) a Detention and Supervision Order ['DSO'] Assessment Report of Anna Hoy dated 17 August 2022, and an addendum to this report dated 24 January 2023;

(b) an expert report of Simon Crowe dated 10 December 2022; and

(c) a psychological report of Ian McKinnon dated 16 June 2024.

31 In terms of the objective gravity of this offending, your counsel submitted that this is of an entirely different degree to your index offending, though acknowledging that your drug dependence formed a central part of the index offending and therefore justification for imposing the relevant condition of your SO. It was further submitted that your moral culpability is reduced by reference to the principles in Bugmy and Verdins given your complex and traumatic history, mental illness and long‑standing intellectual disability. Mr McKinnon's view is that your diagnoses, in addition to your limited intellectual functioning, are likely to have all made a significant contribution to your use of methylamphetamine by significantly degrading your ability to apply good judgment and sound reasoning.

32 It was submitted that the weight afforded to the sentencing considerations of general and specific deterrence should be moderated in light of your mental impairment and mental conditions. It was submitted that the small amount of an illicit substance consumed with no allegations of violence being put forward should be taken into account in considering the degree to which community protection applies as a sentencing factor in this matter.

33 In terms of penalty, it was conceded that a term of imprisonment is warranted and the period you have served be taken into account and be reckoned as served.

34 Much material has been placed before the court, namely the letter from Seahaven, the special report from Corrections Victoria, the post sentence environmental scan and the Schedule of Directions which has all been recent material that has been provided and, on the last occasion, there were submissions made and evidence put before the court.

35 Your consistent appearances in this court for breaches of your SO demonstrate the difficulty of breaking the cycle of drug addiction. Whilst breaches of an SO are inherently serious, and just punishment and protection of the community are therefore relevant factors to consider, it appears that in your case what is needed is a solid plan for your treatment and rehabilitation. Repeated appearances before this court for breaches of such a similar nature suggest something must change. What has been proposed, and will be overseen by the Post Sentence Branch and Post Sentence Authority, gives the court much comfort in this regard.

36 On the basis of the material that has been put before me and the arguments and the submissions that have been made, I am satisfied that in these circumstances the appropriate sentence to pass for the summary offence of breaching the SO contrary to section 169 of the Serious Offenders Act, is one that effectively is time served which the prosecution has indicated is 75 days' imprisonment. That will then allow you to be released, as I understand it, immediately and then for other things to take over insofar as your future residence and treatment is concerned.

37 I declare that a period of pre‑sentence detention being 75 days be reckoned as having been served as part of this 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 100 days' imprisonment.

[2] DPP v PT [2023] VSC 677 (Champion J).

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

[4] DPP v XG [2023] VSC 127.

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

[6] DPP v XG [2024] VSC 82.

[7] DPP v PT [2023] VSC 677.

[8] DPP v PT (No 2) [2024] VSC 160.

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