IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2024 0203

THE DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SJW		

---

JUDGE:	TINNEY J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	1 October 2024	
DATE OF SENTENCE:	22 October 2024	
CASE MAY BE CITED AS:	DPP v SJW (No 6)	
MEDIUM NEUTRAL CITATION:	[2024] VSC 638	

---
CRIMINAL LAW – Sentence – Contravention of supervision order (‘SO’) – Prohibited use of methylamphetamine on one occasion – Prior convictions for similar offending, as well as gambling offending – Offending during currency of adjourned undertaking to be of good behaviour – Early plea of guilty – Offender continuing otherwise to do well in the community – Overall compliance with SO with exception of drug condition, including improved compliance with gambling condition – General deterrence – Specific deterrence – Rehabilitation – Sentence of 53 days’ imprisonment – Declaration of 53 days’ pre-sentence detention - Serious Offenders Act 2018 ss 169, 173 and 174.

---

APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mx Connor Rattray	Ms A Hogan, Solicitor for Public Prosecutions	
			
For the Accused	Mr T McCulloch	Victoria Legal Aid	

HIS HONOUR:
Introduction
1	SJW, you pleaded guilty on 1 October 2024 to one charge of contravening a supervision order (‘SO’) pursuant to s 169(1) of the Serious Offenders Act 2018 (‘the Act’). You admitted prior convictions contained in a criminal record filed in this case.
2	The current charge 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 the charge.
3	The maximum penalty for contravening a supervision order is 5 years’ imprisonment, but because the charge was dealt with summarily by this Court, the maximum penalty is 2 years’ imprisonment.
Background
4	This is the fifth time on which the Court has been required to sentence you for contravening conditions of the SO to which you are subject, and the twelfth breach dealt with across these five occasions. Most recently on 15 December 2023, I sentenced you to 51 days’ imprisonment with a declaration in respect of 51 days of pre-sentence detention, for your eleventh breach of the SO.
5	Many of the surrounding circumstances of your life and history of offending, including the index offence, the long term of imprisonment you served for it, the making of a SO in your case, your time in Rivergum Residential Treatment Centre, and events following your return to the community, are set out in the most recent sentence. I will not repeat them here.
6	The current offending was constituted by your use of methylamphetamine (‘MA’) on an occasion during the between-dates of the charge. In short, the twelve contraventions by you of your SO, including the current offence, have arisen from either illicit drug use by you, or engaging in gambling, both of which are prohibited by conditions of the SO.
Facts of your offending
7	You were subject to conditions of the SO prohibiting the use or possession of prohibited drugs and requiring you to submit to breath testing or urinalysis at the direction of an officer.
8	At approximately 2:13 pm on 23 August 2024, your Specialist Case Manager (‘SCM’) received a call from your alcohol and drugs support worker at Caraniche, who informed her that prior to your scheduled appointment at Caraniche that day, you had telephoned to inform the worker that you had used your cannabis vape, had crashed your e-bike and were lost and disoriented. You reported memory loss and sounded agitated.
9	On 26 August 2024, your SCM directed you to attend for urinalysis the following day at Melbourne Justice Service Centre. At 1:00 pm on 27 August 2024, you attended for urinalysis as directed and provided a sample of urine. On 28 August 2024, Dorevitch Pathology analysed the sample, and it was determined that MA was present in the sample.
10	You were arrested at your home address in Melbourne at 9:15 am on 30 August 2024 for contravening your SO. You were conveyed to St Kilda Police Station for processing. You declined to be interviewed. You were charged and remanded in custody, where you have since remained.
Evidence on the plea
11	Daniel Corsetti, a counsellor from Hard Cuddles, gave sworn evidence during the plea hearing, and a report from Mr Corsetti tendered during the previous plea hearing was tendered again before me. Mr Corsetti summarised the support he has provided to you since July 2023, the efforts you have made to reintegrate into the community, and the challenges you have faced due to your institutionalisation. In the lead-up to your recent offending, the level of support provided by Hard Cuddles had been reduced. Mr Corsetti stated that he intended to increase the support level provided to you in the aftermath of recent events.
12	A Status Review Report from Corrections Victoria covering the period April to July 2024 was also tendered on your behalf. The report detailed your overall excellent level of attendance and engagement in all of the aspects of the treatment provided to you under the SO.
Defence submissions
13	Mr McCulloch placed great weight on your early plea of guilty. He submitted that from your cooperation with the police, your early plea of guilty, and the fact that you made no application for bail, a degree of remorse and acceptance of responsibility can be inferred.
14	He submitted that your use of MA occurred on a single occasion. This was after the event related above where you had used your cannabis vape and crashed your e-bike. Your decision-making abilities were affected by the use of the cannabis, and you were offered some MA, which you accepted, notwithstanding the fact that you had already had the phone conversation with your Caraniche support worker and might have anticipated a requirement to undergo urinalysis.
15	Whilst acknowledging the seriousness of any breach of the SO regime, Mr McCulloch outlined some features of the current offending which would place its objective seriousness at the lower end of the spectrum. This was an isolated instance of personal drug use, not accompanied by any other form of criminality.
16	Mr McCulloch accepted, however, that your moral culpability for the offending nevertheless remains high, and that the overall circumstances dictate that a term of imprisonment is warranted. He submitted that the term should be a modest one, and that the 32 days of pre-sentence detention you had already served by the time of the plea hearing would suffice. A significant specific deterrent effect would flow from even a short term of imprisonment, partly because of the complexities involved in your reintegrating into the community upon release. A longer period of imprisonment would heighten the risk of further institutionalisation.
17	Mr McCulloch urged me to view your repeated breaches of the SO in the light of your damaged personality structure. The punitive and deterrent aspects of sentencing should be weighed against your ongoing high level of engagement in all aspects of your SO and the progress you have made towards rehabilitation.
18	One matter of some significance outlined by Mr McCulloch, which represented a considerable change since you were last before the Court, is the fact that since March 2024, you have been permitted by direction of the Post Sentence Authority to engage in limited and controlled gambling under the supervision of your SCM. Mr McCulloch informed me that the arrangements have worked well, that there have been no breaches by you, and that, in fact, your interest in gambling has been waning. As I noted during the hearing, this strikes me as being a positive development.
Prosecution submissions
19	Mx Rattray relied upon written and oral submissions which emphasised the importance of general and specific deterrence, while also acknowledging the significance of rehabilitation in the sentencing discretion.
Analysis
20	SJW, it is disappointing to find you again before the Court for breaching your SO. Your repeated breaches of the conditions of the SO over the years are in stark contrast to the overall excellent level of your engagement in the requirements of the SO. I readily accept that far from being indicative of any lack of respect for the Court or the requirements of the SO, your offences reflect your damaged personality structure and the substantial challenges that you have faced in returning to life in the community after many years of incarceration.
21	Although the seriousness of the current offending is aggravated by the fact that it occurred during the currency of an adjourned undertaking you gave to the Court on 24 August 2023, I accept that the current breach was not of a high level of objective seriousness, and occurred at a time of stress in your life.
22	Your early plea of guilty and obvious remorse are important considerations.
23	I consider, as conceded by your counsel, that your offending can only be met by a custodial sentence. However, although you have been warned repeatedly in the past of the prospect of longer sentences if you continue to offend, and should not lose sight of those warnings, I think that the necessary sentencing purposes can be met in this case with a sentence of moderate duration.
24	I think it is important that you return to the community as soon as possible and continue with the very admirable efforts you have made for some years to further your rehabilitation. The difficulties you have confronted are not lost on the Court, and the good faith and determination you have shown in generally complying with the sometimes onerous requirements of your SO have been an encouraging and continuing feature of your case. Furthermore, it is necessary for the Court to do its best to ensure that you are not further institutionalised by unnecessarily long terms of imprisonment.
Sentence
25	On the charge before the Court of contravening a SO, you are convicted and sentenced to be imprisoned for 53 days.
26	I declare a period of 53 days up to and including yesterday, 21 October 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.
27	I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty to the charge before the Court, I would have imposed a sentence of 4 months’ imprisonment.