DPP v SS

1 SS, you have been found guilty of one charge of unlawful assault under s 23 of the Summary Offences Act 1966 and one charge of contravening a condition of a supervision order ('SO') pursuant to s 169 of the Serious Offenders Act 2018 ('the Act').

2 Those findings of guilt arise from two separate contested hearings.[1]

3 The maximum penalty for unlawful assault is imprisonment for three months. The maximum penalty for contravening a condition of a SO is imprisonment for five years. Because of the manner in which this charge has come before the Court and the nature of the hearing,[2] the maximum penalty applicable is imprisonment for two years.[3]

4 The maximum cumulative term of imprisonment which the Magistrates' Court could impose for offences is imprisonment for five years.[4]

5 You have admitted the prior convictions contained in the criminal record filed in this case. I will have more to say about these later in this sentence.

6 You were convicted of murder in 2000. You were made subject to a SO under the Act on 23 August 2019.[5] The order permitted you to reside in the community. On a review of that SO on 8 January 2021,[6] the order was modified to contain an intensive treatment and supervision condition requiring you to reside at Rivergum Residential Treatment Centre ('Rivergum'), a residential treatment facility for the purposes of the Act. You commenced residing at Rivergum in February 2021.

7 One of the core conditions of the SO to which you were subject at the time of the offending provided:

If the court requires [SS] to reside at a residential treatment facility, [SS] must obey all instructions given by a supervision officer or a specified officer under section 183 of the Act. [7]

8 These offences occurred on 9 July 2021. On that day, you were transported from Rivergum to attend a dental appointment in Ararat. On the way back, you apparently became irate in response to the enhanced security arrangements which had been put in place for the outing, which included a vehicle containing members of the Security and Emergency Services Group ('SESG') following behind the vehicle in which you were travelling. You were seated in the rear driver's side seat of the vehicle in which you were travelling, with a specialist case worker ('SCW') named Craig Youlden ('Youlden') seated beside you in the middle seat. You launched a tirade of abuse towards Youlden, leant forcefully back in your seat deliberately bringing your shoulder or elbow into forceful contact with Youlden, and threatened to smash his head in. You brought your nose in contact with or very close to the nose of Youlden and offered to fight him. Your deliberate and aggressive actions caused Youlden to fear that you were about to launch a physical attack upon him in the confines of that vehicle, which was the intended effect of your actions. You thereby committed the offence of unlawful assault.

9 Upon your arrival back at Rivergum, further events unfolded in the sally port and reception area in which you made your continuing anger and aggression apparent. One of the SESG officers, Edward Denouden ('Denouden') stepped in and sought to have you comply with directions being given to you. You questioned why SESG members were even present, abused and threatened Denouden, and lunged at him, causing him to take a step backwards. After a time, you were permitted to return to your unit.

10 The disturbance caused by you on your arrival back at Rivergum was observed from afar by Detective Acting Sergeant Greg Mitchell ('Mitchell'), a member of the Supervision Order Specialist Response Unit ('SOSRU') who was on duty at Rivergum in the SOSRU office and then followed what was unfolding from the electronic monitoring room. Shortly after you were permitted to return to your unit, Mitchell was informed about your conduct towards Youlden in the vehicle on the way back to Rivergum. He formed the view that you had assaulted the SCW and breached your SO. He decided that it would be necessary to arrest and interview you with a view to your being charged. It was determined that members of the SESG should assist uniformed Victoria Police members in the arrest.

11 A divisional van from Stawell Police Station containing two members arrived at Rivergum. A briefing was held, following which Denouden and three other SESG members, Mitchell and the two uniformed Victoria Police members, and a team leader from Rivergum proceeded to the rear of your unit. The SESG members went to the rear door of your unit, made themselves known to you, indicated that you were to be arrested by Victoria Police as a result of your earlier behaviour, and requested that you open the door and come out of the unit. You refused to do so. You abused the members, questioned why they were there, and threatened to stab them with 'shivs' which you said you had inside the unit. You physically prevented the SESG members from opening the door in some manner which is unclear. You refused the instructions repeatedly given to you to move away from the door and let them in. In response to your threats and resistance, an SESG member obtained a shield which was then used, with the deployment also of capsicum spray, as the members forced entry into the unit against your continued resistance. You were forced to the ground and taken into custody.

12 Your failure to abide by the instructions given by Denouden during these events constituted the crime of contravening a condition of a SO.

13 Your sad personal background and serious criminal history have been the subject of detailed consideration in earlier decisions of this Court, and it is not necessary to repeat those matters here. Suffice to say that you are now aged 42 years, and have spent a good proportion of your life since you were 19 in custody, as a result of the serious murder of which you were convicted. You have accrued an extensive criminal history for a variety of offending included serious offences of violence.

14 You have been convicted on two previous occasions of offences of contravening conditions of your SO. On the first occasion on 31 January 2020, you were fined $500.00 for one charge of contravening a condition of a SO, namely, by breaching a urinalysis condition. More recently, on 8 January 2021, you received an aggregate sentence of five months' imprisonment for nine charges of contravening a condition of a SO and two charges of committing an indictable offence whilst on bail. The contravening charges concerned breaches of urinalysis and curfew conditions, and a condition prohibiting recording of supervision sessions.

15 At the plea hearing in respect of the present convictions, Mr Marsh on your behalf distinguished your offending from more serious examples of the crimes, including those involving the commission of serious crimes of violence. He submitted that a 'short, sharp term of imprisonment' would be sufficient to satisfy and pay due regard to the applicable sentencing principles.

16 The prosecution submitted that your assault upon Youlden was a serious one, notwithstanding that it was constituted by your deliberately placing him in fear of being attacked, rather than by physically attacking him. Your victim was a vulnerable one, of much smaller stature than you, and in the close confines of a motor vehicle. He was assaulted in the course of his employment. Relying on the authority of Price v The Queen (No 2),[8] Ms Champion submitted that your crime of assault was aggravated by the fact that you were on a SO at the time. As for your breach of a condition of your SO, it was submitted by Ms Champion that this offending was also serious, involving protracted conduct which was aggressive and threatening, necessitating considerable efforts by the SESG members to quell your resistance.

17 On your behalf, Mr Marsh submitted that your offending was entirely explicable by the impulsive and self-destructive behaviour brought about by the personality disorder from which you suffer. He pointed to the withdrawal of some anti-psychotic medication you had previously been prescribed in the lead-up to the offending, and your negative feelings about SESG members as being factors which contributed to your inability to control your emotions on the day.

18 He submitted that were you not subject to a SO, your offending could be characterised as involving a minor assault and a resisting arrest. He contrasted the level of violence implicit in the assault charge and evident contextually in the contravention charge with the serious violence sometimes committed by people on SOs. He emphasised the link temporally and in other respects between the two crimes of which you have been found guilty, submitting that this was not a case of your engaging in a pattern of sustained repeat offending. He submitted that your offences did not flout the existence of the SO itself or seek to undermine the ultimate authority of the Post Sentence Authority. He asserted that your offending was not protracted, and that whilst there had been in your case a pattern of escalation, your offending is entirely explicable by your personality style.

19 In the context in which it occurred, your assault upon Mr Youlden was serious. You were, to his knowledge, a person subject to a SO whose index offence was murder. You intimidated and threatened him when he was sitting next to you in the confined space of a motor vehicle. He had no way of getting away from you, and he believed, with good reason, that you were about to physically assault him. The fear and apprehension caused by your conduct is clear. Mr Youlden was doing nothing more than carrying out his duty. He did nothing to warrant your attack upon him which occurred in his workplace. The victim impact statement filed and tendered during the plea hearing is illustrative of the ongoing impact of your crime upon Mr Youlden. I take it into account.

20 As for the contravention offence, it is notable that it occurred some hours after your arrival back at Rivergum. You had had plenty of time to bring your emotions under control after the earlier events. When the SESG members arrived at your door, you knew why they were there. Rather than take the path of least resistance, you allowed your lack of respect for them and their involvement to dominate your thinking. Whilst it is clear enough that your personality style was a large contributor to your angry and aggressive conduct, your personality disorder did not deprive you of the ability to behave in an appropriate fashion. You knew that you were required to comply with instructions given to you. You persistently refused to do so, causing a scene which was entirely of your making, and completely unnecessary.

21 In my view, the offence of contravening a condition of a SO of which you have been found guilty was a serious one. It was marked by a persistent refusal by you to comply with the reasonable instructions given to you by Denouden, accompanied by a high level of anger and aggression on your part. Rivergum depends for its smooth running for the benefit of the community and the residents housed there upon the cooperation of residents with the rules in place, and compliance with instructions given to them. Your conduct interfered with the operations of the facility in a material way.

Your moral culpability and degree of responsibility

22 Mr Marsh urged me to ensure that I did not allow you as a person to recede into the background amongst the assortment of offences you have committed over the years. He pointed to the extraordinary hardship you have experienced in your life, which has seen you spend a large proportion of your life from the age of 11 in institutions of one type or another.

23 Mr Marsh submitted that your unfortunate background and the personality disorder with which you are afflicted would give rise to considerations discussed in the cases of Bugmy v The Queen[9] and R v Verdins.[10] He conceded, however, that the beneficial or mitigatory effects of such considerations are, in your case, substantially if not totally offset by the increased need to protect the community from you. He did not submit that the sentence I impose should be reduced to any significant degree by the fact that your moral culpability should be regarded as being diminished as a result of your background and personality disorder. He did, however, ask me to take into account in sentencing you the fact that you have had this tragic background and suffer from a diagnosed personality disorder.

24 Ms Champion submitted that yours is a case in which sentencing you will involve the contemplation of countervailing considerations. Even if the personality disorder from which you suffer is characterised by impulsiveness and an inability to control your emotions, and there may be seen to be a connection between that and your offending, there would be a corresponding increased need for the community to be protected from you. In any event, Ms Champion submitted that your moral culpability should be considered to be high in respect of both offences, your personality disorder notwithstanding.

25 I note what I said in sentencing you earlier this year for contravening a condition of your SO:

I do take into account, in assessing your moral culpability, that you suffer from a diagnosed personality disorder, have a particular personality type, and have led a difficult and disrupted life for many years, things that in combination mean that you do not have the skills a normal person may have to lead an organised, well-planned life, avoiding impulsive, problematic and self-destructive behaviour.

Having said that, it is clear to me that you well understood the conditions of the SO, had it within yourself to comply with those conditions should you choose to do so in spite of your personality disorder, and yet you made a conscious decision on many occasions to ignore the conditions, or at the very least to push the envelope or chance your arm. In my view, your moral culpability for your offending is high.[11]

26 Notwithstanding the different nature of your current offending, I believe the above comments are applicable to the present case.

27 Mr Marsh urged me to have regard to your prospects of rehabilitation in sentencing you. He submitted that the fact that you do retain such prospects is evidenced through your achievements in your life since being placed on the SO. In this regard, he pointed to the fact that you engaged in meaningful and successful employment doing odd jobs through the Airtasker application while living in the community, your successful negotiation of the difficult event of the breakdown in your previous intimate relationship, and your efforts in rebuilding your relationship with your mother, who was present in Court during the plea hearing.

28 Mr Marsh noted the fact that you will be returning to Rivergum at the conclusion of the sentence I pass, where you will recommence the treatment able to be provided to you in that facility. He pointed to the desirability of this process being able to recommence as soon as possible.

29 Ms Champion noted the significance of s 5(2BD) of the Sentencing Act 1991. She submitted that the authorities which she drew to the attention of the Court dictate that the Court would not be entitled to have regard to the fact that you will continue to be subject to a SO and resident in Rivergum as a reason to give less weight to the need for community protection, specific deterrence or general deterrence, or more weight to your prospects of rehabilitation. On the other hand, Ms Champion did not submit that I should not have regard to your prospects of rehabilitation as one of the matters relevant to sentence.

30 I do accept that you have some prospects of rehabilitation. As I noted when I sentenced you in January this year for your previous breaches, you did take some significant steps towards rehabilitation in your time in the community before being placed in Rivergum. Whether you can continue on the path towards ultimate rehabilitation will depend to a large extent on your continued work to deal with the issues in your life resulting from your personality disorder, and resultant tendency to engage in impulsive, problematic and self-destructive behaviour. Rivergum constitutes an environment in which you can carry out the necessary work to deal with these problems. It will be important for you to fully accept and embrace the situation in which you will find yourself once your sentence is completed and you return to Rivergum. That will mean putting to one side the sort of preconceived prejudices which led you to overreact so substantially to the presence of the SESG members on the day of these offences. You must accept that it is in your best interests to fully cooperate with every aspect of what is required of you at Rivergum. Sometimes you may need to swallow your pride. You are an intelligent person, and I am sure that you do have it within yourself to control your emotions more effectively than was evident on 9 July 2021. You would do well not to consider yourself the helpless victim of your emotions and impulses, but rather, a mature adult who can control his actions. Repetitions of the sort of conduct in which you engaged in this case will have disastrous consequences for you. It is inevitable that longer and longer terms of imprisonment will result, and your prospects of rehabilitation will be markedly impaired.

31 I take into account in sentencing you the fact that the time you have spent on remand in respect of these charges, and any additional time you may be required to spend, has been and will be spent under the onerous conditions brought about in custodial settings by the COVID-19 pandemic. You have not had access to educational and other programs, and visits, in the same way as would ordinarily be the case. Your time in custody has been and would continue to be more onerous as a result of those considerations.

32 I am to sentence you for two offences which were closely related in time, and have a connection factually, because your conduct surrounding the first crime was the reason why the decision was made by the authorities to arrest you. Mr Marsh submitted initially that an aggregate sentence would be appropriate, the charges in question meeting the requirements of s 9 of the Sentencing Act 1991. Mr Marsh seemingly accepted for the purpose of that submission that a term of imprisonment would be called for in respect of both crimes. I do not consider that an aggregate sentence of imprisonment would be necessary or appropriate in this case, but will of course have regard to the principle of totality, and the need to order a degree of concurrency between the sentences on the individual charges to ensure that principle is accommodated. I do believe, however, that some cumulation of the sentences on the respective charges will be required, reflecting the fact that there were two distinct episodes of offending involving discrete criminality, punctuated by an interval of about two hours, the fact that you had ample time to reflect upon your conduct in the vehicle before you committed the contravening offence, and the fact that there was a direct victim of the assault offence.

33 As has been submitted on your behalf in the past, Mr Marsh submitted that a sentence constituting a 'short, sharp shock', namely, the five months you had already spent in custody on remand by the time of the plea hearing, would be sufficient to manifest all of the relevant purposes of sentence in this case, including protection of the community.

34 Ms Champion submitted that both your crimes called for terms of imprisonment, and further submitted that the question whether the period of time you had already served would be a sufficient response in light of the important sentencing purposes in this case was a matter for the Court to determine.

35 In my view, all of the purposes for which sentences may be imposed which are set out in s 5(1) of the Act have application in your case. I think specific and general deterrence are particularly important. The sentence I pass must be sufficient to bring it clearly home to you that you must not, in future, commit any further breaches of the conditions of your SO. Regrettably it seems that previous sentences I have passed upon you, and warnings I have given to you, have not had the desired effect in this regard.

36 Furthermore and importantly, the sentence I pass must send a clear message to others on SOs that compliance with the conditions of such orders is mandatory and important, and that contraventions will be met with strong punishment.

37 Taking all of the relevant considerations into account, I have decided that the time that you have thus far spent on remand is not a sufficient period of imprisonment for the current offences, in view of your prior contraventions of the SO. Having said that, the sentence I will pass will have the effect of not delaying by too long your return to Rivergum, and the recommencement of your efforts at rehabilitation in that facility.

38 SS, for the charge of unlawful assault, I sentence you to be imprisoned for a period of 56 days.

39 For the charge of contravening a condition of a supervision order, I sentence you to be imprisoned for a period of 182 days.

40 I order that the sentence on the contravention charge is the base sentence.

41 I order that 28 days of the sentence on the assault charge be served cumulatively upon the base sentence.

42 The total effective sentence is therefore one of imprisonment for 210 days.

43 I declare a period of 167 days up to and including yesterday, 22 December 2021, 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.

[1] DPP v SS [2021] VSC 563; DPP v SS (No 2) [2021] VSC 827.

[3] Section 113(1), Sentencing Act 1991.

[4] Section 113B, Sentencing Act 1991.

[5] Secretary to the Department of Justice and Community Safety v SS [2019] VSC 600.

[6] Secretary to the Department of Justice and Community Safety v SS (Review) [2020] VSC 849.

[7] Condition 2.7 in the order as it was stated following the review of the SO on 8 January 2021.

[8] [2019] VSCA 44.

[9] [2013] HCA 37; (2013) 249 CLR 571.

[10] [2007] VSCA 102; (2007) 16 VR 269.

[11] Secretary to the Department of Justice and Community Safety v SS (No 3) [2021] VSC 1, [32]-[33].