DPP v PT

2 The charge of contravening a SO 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 a plea of guilty to that charge.

3 The maximum penalty for contravening a SO is five years' imprisonment, but because this charge was dealt with summarily, the maximum penalty is two years' imprisonment.[1]

4 The SO to which you are subject was made by Beale J on 2 February 2023. This is the sixth occasion on which you have been before the Court for breaching the order.

5 You were sentenced in this Court for intentionally causing serious injury, false imprisonment and theft ('the index offending') on 27 June 2013, to a total effective sentence of imprisonment for ten years and three months, with a non-parole period of seven years and three months. The index offending occurred in 2012 when you and two co-offenders assaulted a known male victim who you believed owed a drug debt to a co-offender. Over a twenty-four hour period, the victim was held captive, tortured, and severely injured with cuts to his face and back.

6 You were not released on parole, and ended up serving the entirety of your sentence. Shortly before the completion of your sentence, an application was made by the Secretary to the Department of Justice and Community Safety for a SO. Beale J made an interim SO on 21 October 2022. On 2 February 2023 his Honour placed you on a SO for a period of four years.

7 Amongst other conditions of the SO were conditions that you not use or possess prohibited drugs (condition 6.6) ('the drug prohibition condition') and that you submit to breath testing, urinalysis or other test procedures for the detection of drug use, at the direction of specified officers.

1. During 2023, you appeared before this court on no fewer than five occasions for breaching the drug prohibition condition. These were as follows:

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

(b) on 17 March 2023, Croucher J convicted and discharged you on one charge of contravening the SO by using MA; [2]

(c) on 14 August 2023, Jane Dixon J sentenced you to 13 days' imprisonment on one charge of contravening the SO by using MA;[3]

(d) on 6 September 2023, Croucher J sentenced you to 14 days' imprisonment on one charge of contravening the SO by using MA; [4] and

(e) on 21 November 2023, Champion J sentenced you to 30 days' imprisonment on one charge of contravening the SO by using MA.[5]

9 Accordingly, you now come before this court on the sixth occasion since the interim SO was made on 21 October 2022. Each contravention has been of the same or very similar nature, involving the use of MA.

10 On 27 February 2024, you were transported from your residence in Bundoora to the Seahaven Private residential rehabilitation facility ('Seahaven'), to undergo a rehabilitation program. The program at Seahaven was due to run for about four weeks.

11 On the evening of 28 February 2024, you attended a Narcotics Anonymous meeting at Seahaven. At the end of the meeting, you were asked to hold hands with other participants in a circle while they said their serenity prayer. You said that you did not want to participate in this, and left the group circle. A Seahaven staff member went to check on you and touched you on the shoulder to get your attention and ask you to return to the group. You did not like being touched on the shoulder and it is alleged that you started yelling at the staff member. You returned to your residence at Seahaven, and had a cigarette outside. The Seahaven staff member formed the view that this cigarette smelled of cannabis. The staff member asked you whether you had smoked a joint. In response, the prosecution allege that you yelled and made aggressive hand gestures. I note that in her oral submissions before me, which I will turn to more fully in a moment, Ms McLennan, who appeared for you in the plea hearing, denied that you spoke aggressively in either of these interactions, and submitted that psychological evidence supports the proposition that your speech can be excessive, rapid, pressured and highly accented, leading to a mistaken impression of aggression. I accept that, in any event, you did not display a level of aggression to an extent which aggravates the seriousness of your offending.

12 On 29 February 2024, at 9.43am, Seahaven reported the previous evening's incident to Corrections Victoria Specialist Case Manager Ashlea Anderson ('SCM Anderson'). Seahaven reported that they would be discharging you from their program due to your behaviour.

13 You were collected from Seahaven on 29 February 2024. At 2.14pm, SCM Anderson directed you to attend for urinalysis on the basis that, as a result of the information provided by Seahaven, she had formed reasonable grounds to suspect you had contravened the drug prohibition condition of your SO.

14 You attended Dorevitch Pathology, as requested, the same day, and provided a sample of urine. On 1 March 2024, the urine was analysed and returned positive readings for MA and amphetamine, a known metabolite of MA. It is not alleged that you used any prohibited drug other than MA.

15 On 5 March 2024, detectives from the Supervision Order Specialist Response Unit arrested you at your residence in Bundoora and transported you to Heidelberg Police Station for an interview.

16 During the interview, you denied having used MA, and asked for your sample to be retested. You denied having had either the funds or opportunity to have acquired MA while at Seahaven. You indicated that after leaving the Narcotics Anonymous meeting, you had been approached by a staff member and touched on the shoulder, which made you angry and agitated. You denied having been told to leave Seahaven, claiming that you had requested to leave yourself.

17 You were charged and then brought before Heidelberg Magistrates' Court on 5 March 2024, and remanded in custody to appear in the Supreme Court on 8 March 2024 for a directions hearing.

18 At a second directions hearing in this Court on 22 March 2024, the matter resolved into a plea of guilty.

19 It is accepted by the prosecution that your plea of guilty was entered at a very early opportunity, immediately after the results of the urinalysis retesting were available.

20 Your personal background is a sad one. You are 45 years old, having been born in Vietnam in 1978. You were sent to Australia as a young child with a woman fleeing Vietnam, who became your foster mother. She commenced a relationship with a man who became your foster father. You never saw or had any contact with your biological family again, a source of some sadness to you. Your foster parents were emotionally and physically neglectful, and you and your step-siblings were removed from the family home at times and placed into foster and residential care. Your relationship with your foster parents broke down, rendering you homeless while still a child. You had periods living on the streets and in crisis accommodation. You found community with other disaffected and homeless children in the Springvale area. Your unsatisfactory education was marked by bullying, absenteeism, and significant learning difficulties. Your final school was a special school, which you left at age 17. You are functionally illiterate in both English and Vietnamese and have been diagnosed with a mild intellectual disability. You also suffer from a speech impediment.

21 Unsurprisingly, in view of your dysfunctional family background and disrupted education, you have struggled to find employment, although I note that you have been able to obtain and hold down some jobs for a time, and are very focussed on obtaining employment in future. Ms McLennan informed me of the barriers precluding you from obtaining employment which are posed by the conditions of your SO.

22 You have had a long history of drug addiction, particularly to heroin and MA. You have completed a number of drug rehabilitation courses, including a four-week intensive program with East Side Recovery which concluded on 28 October 2023. Ms McLennan indicated that some arrangements have been put in place with a view to your attending The Basin Drug Rehabilitation Centre for long-term drug rehabilitation after the conclusion of any sentence of the Court. Self-evidently, in view of the current offending, your recovery from your drug addiction is a work-in-process. I am satisfied, however, that you do accept the need to rid yourself of your addiction and are keen to address your issues.

23 You have a lengthy and significant criminal history commencing with a conviction for trafficking heroin in 1996 when you were only 18 years old. It is not necessary for present purposes to deal further with that history.

24 Ms McLennan, whilst acknowledging your repeated contraventions of the SO, noted that there is no evidence of your having been violent in conjunction with any of your breaches of the SO, including the current one. In respect of the current allegation of your having behaved aggressively towards Seahaven staff, she submitted that your frustration at having been wrongly accused of cannabis use, as well as the communication issues I outlined earlier, may have contributed to the appearance of aggression on your part.

25 Ms McLennan distinguished the relative seriousness of the current offending from that of the index offending. She acknowledged, however, the significance of your continuing drug use, in light of the importance of drug use in the index offending. Ms McLennan was not in a position to throw any light on the circumstances of the current offending, other than to make it clear that you accept your guilt.

26 Ms McLennan submitted that your complex and traumatic history combined with your long-standing intellectual disability, should serve to moderate, to a limited extent, your moral culpability. She accepted that general and specific deterrence, as well as protection of the community, are all important considerations in light of your repeated breaches of the condition of your SO and the centrality of your drug use in the index offending.

27 Ms McLennan emphasised that the current offending alleges the use of MA on one occasion only. She also pointed to the significance of your early plea of guilty, and the importance of rehabilitation in your case. She reminded me of the importance of the principle of parsimony.

28 Ms McLennan accepted that a term of imprisonment is warranted in your case, but submitted that the term should be a short, sharp one.

29 Mr Andrews, for the prosecution, submitted that in all of the circumstances of this case, a term of imprisonment exceeding the time you had spent in custody at the time of the plea hearing, 28 days, is necessary in this case.

30 In emphasising the seriousness of your offending, Mr Andrews submitted that the drug prohibition condition is a central pillar of the SO, in light of the great significance of drug use in the index offending. In a very direct way, the index offending was drug-related, meaning that ongoing drug use is a serious risk factor for future serious violence offending.

31 As for your moral culpability, Mr Andrews noted that judges of this Court have stated on repeated occasions that you are well aware of the conditions of your SO and are capable of complying with them. You have demonstrated some insight into the effects of drug use upon you, and have had some periods of abstinence in the past. Therefore, he submitted, you have some insight into the seriousness of disregarding the drug prohibition condition, and the capability, should you so choose, to abide by the condition.

32 Mr Andrews emphasised the importance of general and specific deterrence, and protection of the community.

33 Insofar as rehabilitation is concerned, Mr Andrews accepted that your willingness to undergo further drug rehabilitation is positive, but noted that past attempts at drug rehabilitation have not been successful. He submitted that your prospects of rehabilitation are poor.

34 Since being placed on the interim SO on 21 October 2022, you have breached the same drug-prohibition condition on six occasions. You have received a succession of sentences tailored by the respective sentencing judges to meet the sentencing purposes at the time. When you were last before the Court for sentence on 21 November 2023, Champion J sentenced you to imprisonment for 30 days, while at the same time taking into account, in a general way, a further period of time you had spent in custody, pursuant to the principle in R v Renzella.[6]

35 At the time of sentencing you, Champion J, noting your repeated contraventions of the relevant condition of your SO, stated:

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.[7]

36 Unfortunately, these words of Champion J, and the sentence of imprisonment he passed upon you, did not have the desired effect. About three months later, you again chose to use MA in breach of the condition prohibiting such use.

37 In light of your history of contraventions, Ms McLennan's concession that a term of imprisonment is called for in your case is understandable. There is no question that the needs of general and specific deterrence and protection of the community require nothing less, notwithstanding the matters put in mitigation on your behalf, including your early plea of guilty, your intellectual disability and your very sad personal background.

38 I am not so naïve as to think that the path to rehabilitation from a drug addiction as serious and long-term as yours can be expected to be linear and trouble-free. What you need to achieve in order to reduce the risk you pose of committing future serious violence offences, and thereby warrant a reduction in the strict conditions of your SO, will clearly not be easy. But you must understand that it is of central importance that you remain drug free. If you use illicit drugs, you will be committing a clear breach of an important condition of the SO which will undoubtedly come to the attention of the authorities, bringing you again before this Court.

39 Having considered all of the circumstances of your case, and having regard to all of the matters in your favour, and in aggravation of sentence, I have decided that your criminality can only be met with a term of imprisonment. I will impose the shortest term of imprisonment which I consider adequately reflects and pays regard to the applicable sentencing purposes in this case, including the purpose of rehabilitation.

40 PT, for contravening a supervision order, you are sentenced to be imprisoned for 60 days.

41 I declare a period of 31 days up to and including yesterday, 4 April 2024, 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.

42 I state pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to be imprisoned for 90 days.

[1] Sentencing Act 1991 s 113(1).

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

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

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

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

[6] [1997] 2 VR 88.