DPP v XG [2024] VSC 82

1 On 6 September 2023, XG[1] sought, and was granted, summary jurisdiction in respect of the hearing of a charge that he contravened a condition of his supervision order by using methylamphetamine, contrary to s 169 of the Serious Offenders Act 2018 (Vic) ("SOA"). He then pleaded guilty through Mr McLennan, who appeared for him.

2 After hearing an opening from Mr Dober, who appeared for the Director of Public Prosecutions, and a plea in mitigation from Mr McLennan, I convicted XG and sentenced him to 14 days' imprisonment, and declared that he had already served that period in custody.

3 I gave brief reasons for imposing that sentence, but indicated I would publish more detailed written reasons at a later date. These are those written reasons (which are couched as if written at the time of sentence).

4 I shall commence with the background to the making of the supervision order.

5 In 2013, XG pleaded guilty in this Court to intentionally causing serious injury and other offences involving the repeated assault and torture of a person in the company of others. Justice Beach imposed a total effective sentence of ten years and three months' imprisonment, with a non-parole period of seven years and three months.

6 On 21 October 2022, about two weeks before that sentence was due to expire, Beale J placed XG on an interim supervision order under the SOA so that he would be supervised when released from prison. On 2 February 2023, his Honour placed XG on a final supervision order under the same Act for a period of four years.

7 One of the numerous conditions of each order was that XG must not use or possess prohibited drugs.

8 The facts giving rise to the current offence are as follows.

9 In the afternoon of 17 August 2023, XG was observed to be slurring his words, engaging in tangential speech, drowsy, fixating and ruminating on frustrations, expressing grandiosity and rigid in discussions. His presentation was heightened, and he had expressed verbal threats of violence towards unknown persons whom he blamed for inconveniences and grievances he had experienced throughout the day.

10 These observations were conveyed to XG's specialist case manager ("SCM") at Corrections, who formed reasonable grounds for suspecting he had used drugs. Thereafter, the SCM spoke directly to XG. He considered XG to be presenting in a heightened manner, which was characterised by his regular use of profanity, and expressing threats of violence towards both known and unknown persons with whom, he said, he was frustrated.

11 The SCM then consulted the staff of XG's residential facility, and requested that the CCTV footage be reviewed for the past week to identify whether there were any potential concerns regarding his activities during that week. The footage revealed that, on 15 August 2023, XG approached the property's fence-line, and retrieved a package.

12 After consulting a principal practitioner at Corrections, the SCM determined that reasonable grounds were present to believe that XG had contravened a condition of his supervision order.

13 The next day (18 August), the SCM directed XG to undergo urinalysis. XG attended a pathology clinic, but was unable to produce a sample. He was then directed to attend another pathology facility, where he was able to produce a sample.

14 On 22 August 2023, the urinalysis returned a positive result for methylamphetamine, amphetamine, and a number of other compounds for which XG has a prescription. It is common for amphetamine to appear in the body as a by-product of the metabolization of methylamphetamine. The Director does not allege that XG used any prohibited drug other than methylamphetamine. Nor was it alleged that he used methylamphetamine on more than one occasion.

15 On 23 August 2023, officers from Victoria Police's Supervision Order Specialist Response Unit attended XG's residential address, cautioned and arrested him, and conducted a search under s 229 of the SOA. No items of interest to Victoria Police were found during the search, and nothing was seized.

16 XG was taken to a police station, where he declined to be interviewed. He did, however, during the journey to the station, disclose to police that he had bought "half a point" (i.e., 0.05 grams) for $50 a few days prior (which must have been about 17 August), and that he had used the drug intravenously. He said that he used methylamphetamine to take the pain away, which I understood to be a reference to the chronic back pain he suffers.

17 XG was charged with the current offence (and also with an alternative offence of using methylamphetamine, which was withdrawn upon his guilty plea to the other charge).

18 He was brought before the Magistrates' Court on 23 August 2023, and was remanded in custody to appear before this Court a week later for a directions hearing. Prior to the directions hearing, the matter resolved on the above detailed basis. As indicated earlier, the matter came before me on 6 September 2023. Thus, by then, XG had spent 14 days in custody on this matter.

19 The offence of contravening a supervision order is punishable by a maximum penalty of five years' imprisonment. However, if a charge for the offence is heard and determined summarily, as here, the maximum term of imprisonment to which this Court may sentence XG is two years.[2]

20 This is the fourth time in eight months that XG has breached that condition by using methylamphetamine.

21 The first occasion was dealt with on 10 February 2023, when Beale J sentenced XG to 14 days' imprisonment for the offence of contravening a condition of his interim supervision order by using methylamphetamine between 7 and 10 January 2023. His Honour declared 14 days of presentence detention. However, as XG had spent 28 days in custody on that matter to that point, he had another 14 days of "Renzella time" to spare.[3]

22 As for the second occasion, on 17 March 2023, I sentenced XG by ordering that he be convicted and discharged for contravening a condition of his supervision order by using methylamphetamine (just the once) on 27 February 2023. XG had spent 17 days in custody to that point. Since there was no occasion to make a declaration of presentence detention, I did not do so. In those circumstances, XG arguably accrued another 17 days of Renzella time.

23 The third occasion was dealt with on 14 August 2023, when Jane Dixon J sentenced XG to 13 days' imprisonment for again contravening a condition of his supervision order by using methylamphetamine, this time on 28 July 2023. Her Honour declared 13 days of presentence detention.

24 The offence to which XG has pleaded guilty today was committed within three days of his being released after being sentenced by Jane Dixon J for the same thing.

25 His other prior convictions are summarized in my previous reasons for sentence,[4] and need not be rehearsed again here.

26 Objectively, I regard this instance of the offence as being at the lower end of the spectrum of gravity for the offence of contravening a condition of a supervision order. There are many more serious ways in which to breach a supervision order.[5] And, here, he used methylamphetamine just the once in circumstances where, I accept, he was attempting to relieve chronic pain.

27 On the other hand, unlike the previous occasion on which I sentenced XG for the same type of offence, he displayed verbal aggression this time, which, I am satisfied, must have arisen at least in part as a result of the effects of methylamphetamine on him.

28 One of the reasons XG is on a supervision order (with a prohibition on using prohibited drugs) in the first place is because of the danger he is thought to present when affected by methylamphetamine, as he was when he committed the serious offences for which he was sentenced in 2013.[6] As Beale J said when imposing the final supervision order in February this year, XG "represents a high risk of committing a serious violence offence if no further intervention and support is provided, and particularly if he relapses to misusing substances".

29 While XG's background and personal circumstances are set out in my previous reasons for sentence,[7] I think I should give a precis of them in these reasons.

31 He came to Australia from Vietnam when he was about ten years of age. His parents sent him to Australia as a refugee in the company of a Vietnamese lady who became his foster mother. Eventually, his relationship with his foster mother broke down and, within a few years of arriving in this country, he ran away and lived on the street, in crisis accommodation and in various foster homes.

32 XG was never released on parole on his sentence of over ten years' imprisonment imposed in 2013. Thus, he served the whole of this term in prison. That said, he made use of his time in prison by doing various courses, and attaining certificates, in order to enhance his prospects of rehabilitation generally and employment in particular.

33 When first released at the expiry of his sentence in November 2022, and before he was arrested and charged in respect of the contravention of his interim supervision order, XG worked in a fish and chip shop.

34 While XG is illiterate, he remains keen to work, is bored without it, but of course finds it very difficult to secure employment given the strictures of the supervision order under which he currently finds himself. Those strictures include conditions that he must wear an ankle bracelet for monitoring, be accompanied by a person from his accommodation whenever he is away from those premises, and other restrictions.

35 When imposing the supervision order in February, Beale J accepted that XG has a long-standing mild intellectual disability. I shall act on that finding.

36 I turn to the mitigating factors, commencing with XG's plea of guilty, which was entered at the first available opportunity.

37 Next, while there may more appropriate and legal ways of achieving this, I accept that at least part of XG's motivation for using methylamphetamine on this occasion was in an attempt to manage his chronic pain.

38 Finally, it is positive that XG has agreed to attend a drug treatment facility for an intensive programme six days a week over a period of four weeks. On this topic, I heard evidence from Karl Johannson, who is an assistant manager of the Specialist Response Unit with the Post Sentence Authority. Mr Johannson explained that an induction appointment had been arranged at the facility for XG tomorrow. He said that the programme could fit in within his other commitments under the conditions of the supervision order. He also said that, if, during the sessions at the facility, it emerged that a residential programme were preferable, there was a possibility of arranging such a programme at a later date.

39 Were this merely an offence of using the prohibited drug methylamphetamine, it would not warrant a prison sentence.[8] But it is not.

40 It is principally because XG's use of the drug is the foundation for the more serious offence of breaching a condition of his supervision order, and because he has done the same thing three times over the past eight months, that, notwithstanding his pain-related motive for his behaviour, this offence warrants imprisonment.

41 Indeed, in the circumstances of this case, I am satisfied that the sentencing purposes of general deterrence, specific deterrence and community protection compel such a disposition.[9]

42 That said, the sentence must be tempered by the importance of rehabilitation as a sentencing purpose. In this regard, it is promising that XG is prepared to undertake the four‑week programme at the treatment facility. Further, his early plea of guilty is an important mitigating factor.

43 On the plea, there was some discussion about whether, when I sentenced XG for his second offence of this kind, I took into account the 14 days of Renzella time left after Beale J's earlier sentence. While I fear I did not make myself as clear as I should have, I did not take into account any Renzella time, because it was unnecessary to do so given that I had determined that a prison sentence was not open. The confusion, I think, must have stemmed from my remark to the effect that, even if I thought the offence did warrant imprisonment, I would not have imposed a prison sentence, given the 14 days of Renzella time available at that point.[10]

44 It is clear from Jane Dixon J's reasons[11] that, when her Honour sentenced XG for his third offence of this type, she proceeded on the basis that, when I sentenced him for the second offence, I did in fact have regard to the 14 days of Renzella time left over after Beale J's earlier sentence, but that I did not have regard to the 17 days of Renzella time arising from his pre-sentence custody on the charge before me at that time.[12] The latter point is correct, but, as I have said, the former is not. In any event, her Honour went on to take into account the 17 days of dead time left over from my earlier sentence when sentencing XG on that occasion.[13]

45 For the avoidance of doubt, I make it clear that, whether or not XG may be regarded as still having some Renzella time available to him, I am not taking that factor into account when sentencing him on this occasion.

46 Balancing all matters, including the principle of parsimony,[14] XG is convicted and sentenced to 14 days' imprisonment.

47 Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that he has spent 14 days in custody under this sentence. Accordingly, he is to be released.

48 Pursuant to s 6AAA of the Sentencing Act, I declare that, but for his plea of guilty, I would have imposed a sentence of 21 days' imprisonment.

[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 Serious Offenders Act 2018 (Vic) s 174(4); Sentencing Act 1991 (Vic) s 113(1).

[3] See R v Renzella [1997] 2 VR 88.

[4] See DPP v XG [2023] VSC 127 at [6]- [11] & [16]-[21].

[5] See, e.g., DPP v RC (No 2) [2023] VSC 422 at [71]- [72].

[6] See DPP v XG [2023] VSC 127 at [26].

[7] See DPP v XG [2023] VSC 127 at, e.g., [35]-[42].

[8] See s 75 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[9] Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentences may be imposed are, to use the shorthand, just punishment, general deterrence, specific deterrence, rehabilitation, denunciation, or community protection, or a combination of two or more of those purposes.

[10] See DPP v RC [2023] VSC 127 at [14] & [58]-[62], esp. at [59].

[11] DPP v RC [2023] VSC 489 at [37]-[39].

[12] As her Honour also noted, Renzella time is usually "appropriately accounted for at the first opportunity" (see DPP v RC [2023] VSC 489 at [37]).

[13] DPP v RC [2023] VSC 489 at [39].

[14] See s 5(3) of the Sentencing Act 1991 (Vic).