DPP v RC [2023] VSC 312

1 On 18 May 2023, RC[1] pleaded guilty in this Court to a charge of contravening a condition of his supervision order, contrary to s 169 of the Serious Offenders Act 2018 (Vic) ("the SOA").

2 The offence was constituted by RC's use of methylamphetamine, just the once, nine days earlier, on 9 May. The same day, RC told his specialist case manager that he had used alcohol and drugs. Urinalysis conducted the next day confirmed his use of methylamphetamine.

3 RC was arrested and charged on 11 May. He had spent seven days in custody by the time of the plea hearing.

4 At the conclusion of that hearing, I sentenced RC by recording a conviction and imposing a fine of $100.

5 I gave reasons for sentence at that time, but indicated I would publish more detailed written reasons at a later date. These are those reasons.

6 I turn first to the background to the making of the supervision order and RC's breach of that order.

Offence rendering RC an eligible offender vis-à-vis a supervision order

7 In 2013, RC, then aged 33, approached a stranger on a tram in suburban Melbourne and stabbed him in the neck with a knife. The complainant suffered a deep wound to his neck and a laceration to his thumb. RC had been using methylamphetamine for about two weeks before the offence, and on that day as well. His underlying psychiatric disturbance (which is described as schizoaffective disorder) was also considered to have contributed to the offending.

8 Later that year, RC pleaded guilty in the County Court to a charge of recklessly causing serious injury. He was sentenced to five years' imprisonment with a non-parole period of two years and nine months.

9 That conviction and sentence qualified RC as an "eligible offender" within the meaning of the SOA.[2] This gave rise to the potential that he be made subject to orders under that Act, including the supervision order made in February 2022, which he went on to breach in May this year.

10 Before addressing the supervision order, I should note the next major event in the chronology, which occurred in these circumstances.

11 While on parole in respect of the sentence imposed in 2013, RC became involved in an altercation with a neighbour. The altercation culminated in RC forcing his way into his neighbour's unit and stabbing him to his upper body three times with a screwdriver. The neighbour suffered two stab wounds, including one that punctured his lung, and he spent a night in hospital. RC also removed the electronic monitoring device he was required to wear as a condition of his parole. There was, however, no evidence that drug use contributed to his offending on this occasion.

12 As a result, in 2018, RC was charged with, and ultimately pleaded guilty to, offences of aggravated burglary, intentionally causing injury and breaching parole. He was sentenced in the County Court to a total effective sentence of three years' imprisonment with a non-parole period of 18 months.

13 Apart from a brief period on parole, it appears that RC spent most of the period from 2013 to early-2021 serving the entirety of the two total effective sentences imposed in 2013 and 2018 in prison.

14 In April 2021, at the conclusion of RC's prison sentence, a judge of the County Court made an interim supervision order pursuant to the SOA, which included a condition requiring him to reside at Rivergum (which is a secure residential treatment facility).

15 In July 2021, following a period of deterioration in RC's mental health and presentation, he was placed on a secure treatment order pursuant to s 276 of the Mental Health Act 2014 (Vic), and was transferred to Thomas Embling Hospital.

16 A few days later, a judge of the County Court extended the interim supervision order imposed in April for a period of four months.

17 In September 2021, it was determined that RC no longer met the suitability requirements for Rivergum because he had been diagnosed with a serious mental illness.

18 In October 2021, the Director of Public Prosecutions ("the Director") filed in this Court an application for an interim detention order under the SOA. The Secretary to the Department of Justice and Community Safety ("the Secretary") also filed an application for an emergency detention order under the same Act.

19 On 21 October 2021, Beale J rejected those applications, and instead placed RC on an interim supervision order. His Honour considered that the significant improvement in RC's mental state whilst at Thomas Embling Hospital, and the significant degree of supervision and support he would receive under an interim supervision order, made the risks associated with releasing him into the community acceptable.

20 Within a week of its imposition, RC contravened a condition of the interim supervision order by using methylamphetamine. On 22 November 2021, he pleaded guilty to this conduct before Beale J. His Honour imposed a sentence of 21 days' imprisonment, which was the totality of the period he had spent in custody to that point.

21 A new interim supervision order was also made on the same day, following the Secretary's application to review the conditions of the order.

22 In January 2022, the Mental Health Tribunal upheld RC's temporary community treatment order for a period of six months until July 2022.

23 Also in January 2022, the Director withdrew a previous application for a detention order under the SOA. Instead, the Secretary pursued an application for a supervision order.

24 In February 2022, by consent, Beale J placed RC on a supervision order for a period of five years. In the course of his reasons for granting the application for the order, his Honour said this, among other things:

I am satisfied by the evidence of [a psychologist] to a high degree of probability that [RC] poses an unacceptable risk of committing a serious violence offence if he remains in the community and is not subject to a supervision order. I am satisfied both that the magnitude of the risk is great and that the consequences of that risk eventuating would be serious.

While I note the opinions of [the psychologist] relating to RC's ability to live in the community and the associated risk, I consider that the conditions of the [supervision order] sought, as well as my responsibilities under s 27 of the SOA, mean that making this [supervision order] is the appropriate course. I am satisfied that the conditions of this [supervision order] are targeted to reduce RC's risk of reoffending and provide for any reasonable concerns of the victims, while promoting RC's rehabilitation and treatment and interfering minimally with his liberty, privacy and freedom of movement.

Supervision order breached fifteen months later

25 It is that supervision order that RC contravened by taking methylamphetamine 15 months later, on 9 May 2023. In particular, he breached condition 6.5 of the order, which prohibited him from using or possessing prohibited drugs of any kind.

26 When the matter came on before me on 18 May, I granted RC's application to have the matter heard summarily,[3] which was not opposed by the Director. Through his counsel Mr Terry, RC pleaded guilty to the contravention charge.

27 RC also faced a charge of using a drug of dependence, contrary to s 75 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which was constituted by the same act of using methylamphetamine that gave rise to the contravention charge. Upon the plea of guilty to the contravention charge, Mr Dober, who appeared for the Director, withdrew the charge under s 75. I then ordered that that charge be struck out and stayed permanently.

28 The following summary of the contravention offence was read by Mr Dober.

29 On 9 May 2023, RC's Corrections Victoria specialist case manager formed reasonable grounds to direct RC for urinalysis testing. This was because the case manager became aware of an incident involving RC and his partner, and RC's self-reported alcohol and drug use. On that date, RC was directed to undergo urinalysis, which he did the same day. On 10 May, the urinalysis tested positive for methylamphetamine.[4] The Director does not allege that RC used methylamphetamine on more than one occasion.

30 On 11 May, officers from Victoria Police's Supervision Order Specialist Response Unit attended RC's workplace and arrested him. As RC explained at the plea, the officers did so in a manner sensitive to the fact that he was being arrested at his place of work.

31 RC was taken to Werribee Police Station for interview. He told police that he did not take drugs and that he believed his ex-partner placed the drug into his orange juice because she knew the conditions of his supervision order and wanted him locked up. He said that, if he did use drugs, he would have told police, and the reading would have been higher. He said that has been doing really well on his supervision order for the last two years and had not had a positive drug test during that period. He also said that he had employment and wanted to continue working.

32 Upon hearing the agreed summary and having regard to RC's plea of guilty, I found the charge proved.

33 The offence of contravening a supervision order is punishable by a maximum penalty of five years' imprisonment.[5] However, if a charge of this offence is heard and determined summarily, as here, the maximum term of imprisonment which this Court may impose is two years.[6]

34 RC, who is now 43, admitted the prior convictions contained in the criminal history before the Court. In addition to the matters detailed earlier in these reasons, since his teenage years, RC has incurred numerous convictions for a range of offences, including the following.[7] Unless otherwise indicated, the sentences were imposed in the Magistrates' Court.

35 At 19, he was sentenced, on appeal to the County Court, to one month's detention in a youth training centre for car theft, driving offences, and going equipped to steal.

36 At 22, with conviction, he was placed on an undertaking to be of good behaviour for 12 months for failing to answer bail, breaching an intervention order, and driving offences. He had spent 35 days in custody on the charges. It appears that a condition of the undertaking, or at least its purpose, was to ensure that RC co-operated in psychiatric treatment.

37 At 25, RC was imprisoned for 180 days, with 71 days to be served and the balance suspended, for unlawful assault, criminal damage, car theft, going equipped to steal, and driving whilst disqualified.

38 At 26, he was imprisoned for 109 days for driving offences.

39 At 27, he was imprisoned for 14 days, wholly suspended, for assault with a weapon, possessing a weapon, and failing to answer bail. Later the same year, he breached the suspended sentence, which was restored, and was sentenced to two months' imprisonment for criminal damage, unlawful assault, and assault by kicking.

40 At 28, he was imprisoned for 150 days, with 75 days to be served and the balance suspended, for criminal damage, failing to answer bail, recklessly causing injury, assault by kicking, and breaching an intervention order.

41 At 31, RC was imprisoned for three months, wholly suspended, for unlawful assault, and placed on a community-based order for unlawful assault, assault by kicking, failing to answer bail, attempted car theft, criminal damage, possessing a prohibited weapon, going equipped to steal, and possessing a (prescription) drug of dependence.

42 At 33, RC was sentenced in the County Court to the five-year prison sentence for recklessly causing serious injury committed in 2013.

43 At 38, the three-year prison sentence also mentioned earlier was imposed on him in the County Court for aggravated burglary, intentionally causing injury, and breaching a condition of parole.

44 At 41, the 21-day prison sentence mentioned earlier was imposed on him in this Court for breaching a condition of his interim supervision order.

45 At 42 (in December last year), RC was fined for an offence of intentionally causing injury.[8]

46 Mr Terry relied on the following factors in mitigation of sentence.

47 As for the nature and gravity of this particular offence, Mr Terry emphasised that RC used methylamphetamine on only the one occasion. Further, while he accepted that part of the rationale for including in the supervision order a condition prohibiting RC from using drugs is to reduce the risk that he might commit a serious offence of violence, as he did back in 2013 when affected by methylamphetamine, the fact of the matter is that there was no evidence that he was, or that he believed he would or might be, rendered dangerous by use of the drug on this single occasion.

48 Next, Mr Terry explained that, apart from his breach of the interim order in October 2021 by using methylamphetamine, which occurred within a week of his release from Thomas Embling Hospital, RC has done relatively well while in the community. There is no suggestion that his mental illness is now unstable. At the hearing, he presented as quite well on the audio-visual connection from the prison. When initially released from the hospital, he lived in a property managed by Corrections Victoria. In recent months, he completed a 12-month lease on a private rental property arranged with assistance from his case worker, and has now taken over the lease on that property in his own right. He has been working solidly in paid employment as a labourer since the making of the supervision order. He has also obtained his driver's licence and saved for, and bought, his own car. As I understand it, RC's employer is aware of his circumstances, and, happily, RC believes that this offence and the period he has spent in custody will not interfere with his return to that employment. Thus, things appear to be looking up, and he is keen to keep working so that he can pay his rent and fend for himself.

49 Mr Terry conceded that, when all matters are balanced, it would be open to imprison RC, but only for the time he has already served (namely, seven days in custody).

50 He submitted, however, that it also would be open to impose a fine, especially when regard is had to RC's early plea of guilty, his admissions to, and co-operation with, the investigators, and the absence of any violence associated with the offence. While Mr Terry observed that a monetary penalty of any amount would, in a sense, impose an additional punishment on RC in circumstances where he has already spent seven days in custody, he submitted that a modest fine would be the appropriate sentence if I did not consider the offence demanded imprisonment.

51 Mr Dober submitted that the contravention of a supervision order is a serious matter. This is demonstrated by, amongst other things, the penalties such contraventions might attract under the SOA.

52 He submitted that this offence is made more serious because the specific condition breached is in the supervision order to address one of the surrounding circumstances of the offending in respect of which RC was rendered an eligible offender under the SOA in the first place - namely, methylamphetamine use and its role in committing the serious violence offence of recklessly causing serious injury. He also observed, correctly, that the primary purpose of the SOA is to provide for the enhanced protection of the community.[9] However, as Mr Terry pointed out, there was no evidence that RC's use of the drug on this occasion made him violent or that he believed it would or might have that effect.

53 Mr Dober also submitted that consideration should be given to the fact that methylamphetamine is a drug of dependence, the use of which ought to be treated differently from the possession and use of non-illicit drugs (such as those that might be prescribed but in respect of which the offender has no prescription).[10]

54 Mr Dober emphasised the importance of general deterrence as a sentencing purpose. In his submission, 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.[11]

55 As to specific deterrence, Mr Dober referred to what he submitted was RC's relevant and significant criminal history. As he emphasised, this is RC's second contravention of a supervision order by using methylamphetamine (albeit it was an interim order previously), and the prison sentence imposed for that offence evidently did not deter him from similar behaviour on this occasion. Further, as we have seen, he has other prior convictions for failing to adhere to court orders.

56 Mr Dober submitted that a term of imprisonment is warranted (with time already served being open). He also submitted that it would be open to impose a modest monetary penalty by way of a fine, either additionally or instead of a prison sentence.

57 In the main, I accept the submissions of both counsel as to the matters relevant to the exercise of the discretion in this case. Included among those considerations are Mr Terry's submissions on the relative gravity of the offence and on RC's stability and his positive steps towards reform in the last 18 months, as well as the importance of the sentencing purposes and other factors emphasised by Mr Dober in his submissions.

58 Notwithstanding RC's previous prison sentence for a like offence, his prior convictions in general, the protective purpose of the SOA, the rationale for the condition of the supervision order he breached, and the importance of the sentencing purposes conducing to a more punitive sentence, I am satisfied that this particular offence neither demands nor warrants imprisonment. Instead, I consider that a modest fine is the appropriate sentence in this case. Included among the considerations driving me to that view are the following.

59 First, to have taken methylamphetamine on the one occasion, without any evidence of associated violence or risk of violence, or without any evidence of a belief in RC that he would or might become violent, is, in my view, behaviour that is insufficiently serious or morally blameworthy to demand imprisonment. In those circumstances, the need for protection of the community that is part of the rationale for criminalising those who breach supervision orders in this way is lacking to any meaningful extent.

60 Secondly, while, for the reasons urged by Mr Dober, general and specific deterrence are still relevant sentencing purposes that must feature in the sentencing calculus for this offence generally and because of RC's history in particular, those purposes do not, in my view, compel the imposition of a prison sentence either. Nor, for essentially the same reasons, do the sentencing purposes of denunciation or just punishment, whether considered alone or together in combination with other purposes, require imprisonment.

61 Thirdly, RC's rehabilitation, both proved and in prospect, places his offending in a less serious context than his previous offence of a similar nature. It will be remembered that the earlier offence was committed very soon after his release from Thomas Embling Hospital and the imposition of the interim supervision order.[12] Here, in contrast, RC had a relatively long and sustained period of stability and had taken positive steps towards rehabilitation. Rather than a continuation of a pattern of lawlessness by a person with no regard for the law, this offence represents more of a minor setback by an offender with a troubled and troubling history who, pleasingly, appears to be on the path to reform.

62 Fourthly, the fact that, despite the darker aspects of his history, RC has done so well on his supervision order for a relatively long period, and that I am satisfied that he is committed to maintaining and furthering his great strides towards reform, combine to render rehabilitation an important sentencing purpose in this case in any event. While the primary purpose of the SOA is to provide for enhanced protection of the community from those in RC's position, a second purpose of the Act, as expressly set out in s 1(b), is "to facilitate the treatment and rehabilitation of those offenders".[13] In my view, instead of lumbering RC with yet another prison sentence and potentially undoing his good work towards rehabilitation, he should be encouraged in his reformative efforts, at least to the extent that the sentencing process and outcome will allow that to occur.

63 Fifthly, when RC's early plea of guilty is added to the foregoing considerations, as well as his co-operation with the authorities, and the remorse I am satisfied he has shown by those actions, I am persuaded that it would be contrary to the fundamental principle of parsimony to impose a prison sentence in this case.[14]

64 Sixthly, instead, I accept the (joint) submission that it is open to impose a fine. In my judgment, all of the applicable sentencing purposes can be met by such a sentence.

65 Seventhly, in all the circumstances, I am also satisfied that the monetary penalty should be modest, so that there is no serious risk that RC's attempts to provide for himself might be thwarted by the financial burden of paying a hefty fine.

66 Eighthly, I am also satisfied that it is appropriate in this case to record a conviction. Notwithstanding my view of the nature and comparatively minor seriousness of the offence, I think that RC's past criminal history makes it inappropriate to decline to record a conviction. Further, in view of that history, and given the modest amount of the fine and the attitude of his current employer, I do not think that it can be said that there would be an adverse impact on RC's economic or social well-being or on his employment prospects resulting from the recording of a conviction.[15]

67 Ninthly, while, in the absence of a prison sentence, there is no pre-sentence detention to declare, it cannot be ignored that there is an element of punishment and personal deterrence in the fact that RC has been held for seven days in custody on the charge for this offence. That reality, I am satisfied, must have had a salutary effect on RC, and in turn reduces the need for specific deterrence as a sentencing purpose, which must also enhance the chances of his continued reform and, thereby, also protection of the community in the longer run. Hopefully, RC's experience in custody does not have the opposite effect, perhaps by exposing him to prison life again and undermining his resolve to reform.

68 Finally, I should add that I accept Mr Dober's additional submission (which Mr Terry did not gainsay) that it would not be open, instead, merely to convict and discharge RC on this offence. Relatively minor though the offence was, I think that the absence of any compelling mitigating factor explaining his behaviour on this occasion precludes a sentence of that kind in this case.[16] Rather, a modest fine, with conviction, is necessary and appropriate.

69 As it happens, the imposition of a fine is also consistent with current sentencing practices for this offence, in so far as such practices may be determined.[17] Helpfully, in an attempt to assist in gauging those practices, Mr Dober referred me to some sentencing statistics for this offence for the period 1 July 2016 to 30 June 2021.[18] Of the 169 sentences imposed, about 81 per cent were imprisonment, about four per cent were community correction orders, about nine per cent were fines, and about five per cent were adjourned undertakings or discharges.

70 Current sentencing practice is just one factor in sentencing, and certainly not a controlling one at that, but it can nevertheless be important in the sentencing synthesis. And, of course, like most other sentencing statistics, the statistics provided on this occasion are of only of limited value, as they do not distinguish cases according to their individual circumstances. Plainly enough, breaches of supervision orders can range from comparatively trivial offending through to quite serious behaviour, and the circumstances of the offender can vary markedly too from case to case.

71 While it is unnecessary to my reasoning in this matter, I suspect that at least some of the prison sentences found in these statistics might have been imposed in circumstances where, having been held in custody for a shorter or longer period before the plea hearing, there was little, if any, argument from the offender - who necessarily would have a significant criminal history - about whether a prison sentence was necessary, particularly where a sentence of "time served" was in the offing. In such cases, it is far easier to concede or urge such a sentence, which represents no additional punishment beyond that which has already been incurred irretrievably by dint of time spent in custody, and move on with the next phase of life with no additional restrictions, whether they be by way of the strictures of a community correction order, payment of a fine, or the conditions of an undertaking to be of good behaviour.

72 In any event, the raw numbers show that almost one in five of the sentences imposed during the five-year period surveyed involved a disposition other than imprisonment. To that extent, it is hardly statistically unusual to impose a fine for this type of offence.

73 I was also referred to specific cases in which fines or other non-custodial dispositions have been imposed for breaches of supervision orders by using drugs.[19] In the area of sentencing, however, it is almost always difficult usefully to compare cases. No two cases are ever truly alike. And, indeed, none of the cases to which I was referred or that I considered is quite the same as RC's case. Nor, as it happens, for the reasons I have given, is his own prior offence of this nature precisely the same as this one. Suffice it to say, however, that, when regard is had to the various contrasting and complimentary factors, the sentence proposed in the present case does not appear to me to be out of kilter with those sentences.

74 That said, sentences are, of course, not precedents to be applied or distinguished. And I have not treated them in that way. In the end, as always, because of the limits of the process of comparison and the nature and dictates of the sentencing function entrusted to the Court, I have been driven to rely principally on the circumstances of this case and sentencing principles to arrive at the appropriate sentence for this particular offence.

75 It is for the foregoing reasons that, on the charge of contravening his supervision order by using methylamphetamine on the one occasion, RC is sentenced by way of a fine of $100, with conviction.[20]

[1] Pursuant to an extant order made by Beale J on a previous occasion, the accused's name must be anonymised, and his address must not be revealed.

[2] See the definitions of "eligible offender" and "serious violence offence" in the Serious Offenders Act 2018 (Vic), ss 3 and 8, and item 3(f) of Schedule 2.

[3] See Serious Offenders Act 2018 (Vic), s 174.

[4] There was also amphetamine detected in the sample. However, Mr Dober explained that the presence of amphetamine in urinalysis can be a by-product of methylamphetamine metabolising, and that, accordingly, it is not alleged that RC breached the supervision order by using amphetamine, or, for that matter, any drug other than methylamphetamine.

[5] Serious Offenders Act 2018 (Vic), s 169(1).

[6] See Serious Offenders Act 2018 (Vic), s 174(4); and Sentencing Act 1991 (Vic), s 113(1).

[7] As a child or a young adult, RC sustained some findings of guilt, without conviction, which need not be detailed here.

[8] The criminal history does not disclose, nor was I told, when this offence was committed.

[9] See Serious Offenders Act 2018 (Vic), s 1(a).

[10] Counsel referred to DPP v SM [2019] VSC 466 at [14] (per Elliott J) and R v TA [2021] VSC 479 at [14] (per Taylor J).

[11] Counsel referred to Acting Secretary to the Department of Justice v McKane [2012] VSC 459 at [21] (per Williams J), which concerned the precursor legislation to the Serious Offenders Act 2018 (Vic).

[12] Further, while it is unnecessary to my ultimate conclusion on sentence, as I understood Mr Terry's submission, the earlier offence, like the present breach, alleged only the one offence breaching the supervision order by methylamphetamine use, but it may have been a rolled-up charge reflecting the fact that RC admitted on that earlier occasion that he had been on a three-day bender of using both methylamphetamine and heroin. Thus, whether or not it was a rolled-up charge, in view of those admissions, in contrast to the present situation, it could not be said in mitigation that the earlier offending involved an isolated instance of taking an illicit drug in breach of the supervision order.

[13] In my view, it cannot be (and it was not submitted) that to have regard to either the rehabilitative purpose in s 1(b) of the Serious Offenders Act 2018 (Vic) or the similar sentencing purpose specified in s 5(1)(c) of the Sentencing Act 1991 (Vic) is precluded by s 5(2BD)(a) of the latter Act.

[14] That principle is reflected in s 5(3) of the Sentencing Act 1991 (Vic) (see also ss 5(4), (4C), (6) and (7)).

[15] See Sentencing Act 1991 (Vic), s 8.

[16] Contrast, e.g., the particular circumstances in which a similar offence was committed in DPP v XG [2023] VSC 127 at [49] & [58] (per Croucher J).

[17] See Sentencing Act 1991 (Vic), s 5(2)(b).

[18] See Sentencing Advisory Council, SACStat, Contravene a supervision or interim supervision order, Serious Offenders Act 2018 (Vic), s 169(1), Higher Courts, 1 July 2016 to 30 June 2021.

[19] See, e.g., DPP v SM [2019] VSC 466 (per Elliott J); R v TA [2021] VSC 479 (per Taylor J); and DPP v XG [2023] VSC 127 (per Croucher J). See also DPP v MTE [2023] VSC 162 (per Jane Dixon J).

[20] After imposing sentence, I fixed a stay of six months on the payment of that fine.