Bobby McKay v The Queen
[2022] VSCA 175
•23 August 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0180 |
| BOBBY MCKAY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | KENNEDY JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 23 August 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 175 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1782 (Judge Trapnell) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Application for leave to appeal against sentence – Where 12 indictable offences and 10 related summary offences related to driving and theft offences – Total effective sentence of 6 years with non-parole of 4 years – Where sentence of 3 years in respect of aggravated reckless exposure of an emergency worker to risk by driving – Whether sentence manifestly excessive – Whether double punishment in relation to damage to emergency service vehicle and reckless exposure of emergency worker – Leave to appeal granted in relation to ground 2 (manifest excess) only.
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| Counsel | |||
| Applicant: | Mr T Battersby | ||
| Respondent: | Ms E Ruddle QC | ||
Solicitors | |||
| Applicant: | Greg Thomas Barrister & Solicitor | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
KENNEDY JA:
On 2 August 2021, the applicant pleaded guilty in the County Court to 12 indictable offences and 10 related summary offences. These charges described a sequence of offences committed on 2 July 2020 and 6 July 2020.
On 12 November 2021, the applicant was sentenced as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Theft of motor vehicle | 10 years | 6 months | 3 months |
| 2 | Dangerous driving while pursued by police | 3 years | 1 year | 6 months |
| 3 | Theft from shop | 10 years | 60 days | 14 days |
| 4 | Theft of motor vehicle | 10 years | 8 months | 2 months |
| 5 | Damage emergency service vehicle by recklessly driving | 5 years | 1 year | 4 months |
| 6 | Dangerous driving whilst pursued by police | 3 years | 1 year | 6 months |
| 7 | Damage emergency service vehicle by recklessly driving | 5 years | 15 months | 5 months |
| 8 | Theft from shop | 10 years | 60 days | 14 days |
| 9 | Aggravated reckless exposure of emergency worker to risk by driving | 10 years | 3 years | Base |
| 10 | Theft of motor vehicle | 10 years | 8 months | 3 months |
| 11 | Reckless conduct endangering persons | 5 years | 12 months | 4 months |
| 12 | Theft from shop | 10 years | 30 days | 7 days |
| Related Summary Offence | ||||
| 4 | Fail to stop vehicle on police direction | 12 months | 3 months | 1 month |
| 8 | Fail to stop after accident | 14 days | 7 days | 2 days |
| 13 | Unlicensed driving | 6 months | 30 days | 7 days |
| 14 | Refuse preliminary breath test | 12 months | 30 days | 7 days |
| 15 | Contravene conduct condition of bail | 3 months | 7 days | None |
| 16 | Commit indictable offence whilst on bail | 3 months | 1 month | None |
| 29 | Unlicensed driving | 6 months | 30 days | 7 days |
| 30 | Contravene conduct condition of bail | 3 months | 7 days | None |
| 31 | Commit indictable offence whilst on bail | 3 months | 30 days | None |
| 32 | Fail to stop vehicle after accident | 14 days | 7 days | 2 days |
| Total Effective Sentence: | 5 years 10 months 60 days | |||
| Non-Parole Period: | 4 years | |||
| Pre-sentence Detention Declared: | 494 days | |||
| Section 6AAA Statement: | 8 years’ imprisonment, with 6 years non-parole | |||
| Other Relevant Orders: 1. License disqualification orders | ||||
The applicant now seeks leave to appeal against sentence on the following two proposed grounds:
Ground 1: It is submitted that the learned Sentencing Judge erred by failing to avoid double punishment between the offence of recklessly driving a motor vehicle so that damage was caused to an emergency service vehicle (charge 7) and aggravated exposure of emergency workers to risk by driving (charge 9).
Ground 2: It is submitted that the total effective sentence of 6 years, and the non-parole period of 4 years was in all the circumstances manifestly excessive.
Circumstances of the offending[1]
[1]As summarised in the Amended Written Case for the applicant, dated 10 March 2022. The respondent took no issue with this summary.
The applicant was arrested and remanded in custody on 6 July 2020 after members of Victoria Police located him at a service station in Wheelers Hill. In the days leading up to his arrest, the applicant had stolen three vehicles and twice driven dangerously while pursued by police. During earlier attempts to effect an arrest, the applicant had recklessly caused damage to police vehicles on two separate occasions and also exposed emergency workers to risk by his driving in a stolen vehicle.
The offending of the applicant commenced on 2 July 2020 when he stole an LDV utility vehicle from Lakes Entrance. Some 40 minutes after the theft, members of Victoria Police attempted to intercept the LDV on a road south of Mossiface, Gippsland. The applicant evaded police by rapidly accelerating and the pursuit was soon terminated. The applicant then attended a service station in Bruthen and committed shop theft.
The remainder of the offending occurred during the latter half of 6 July 2020. In the early afternoon of this date, the applicant stole a Range Rover in East Melbourne. Around 5pm, this Range Rover was driven to the dealership in Port Melbourne where the applicant requested the vehicle be refuelled. Victoria Police attended the dealership and requested that the applicant surrender himself at gunpoint. Instead, the applicant drove away through a gap next to a police vehicle, damaging both the police vehicle and the stolen Range Rover.
At 7.10pm, the Range Rover was sighted by members of Victoria Police in Mordialloc. On sighting police, the applicant drove off along Beach Road in a dangerous manner, exceeding the speed limit and overtaking other traffic on a wet road.
Some minutes later, the applicant was observed by Victoria Police refuelling the Range Rover at a service station in Sandringham. Police attempted to ‘box-in’ the applicant with their vehicles to effect an arrest. Again, rather than surrendering himself, the applicant entered the Range Rover and drove away. In doing so, the applicant collided with two police vehicles. Through his driving, he exposed four members of Victoria Police to risk.
At 7.40pm, some half an hour later, the applicant abandoned the stolen Range Rover and stole a Toyota Corolla in Sandringham. While driving this Corolla he caused damage to another vehicle through a glancing impact on the Monash Freeway and failed to stop after this accident.
The applicant then drove to a service station in Wheelers Hill and committed shop theft. He was arrested shortly after and transported to Melbourne West Police Station. He was deemed unfit for interview by a Forensic Medical Officer.
Applicant’s background
The applicant was born on 24 June 1989, and was 31 years old at the time of the offending.[2] The applicant is an Aboriginal man who was born in Melbourne and raised in Mill Park by his mother. The applicant has a brother and a sister. He was expelled from school in year 9, and has had several jobs as a labourer, but has not worked in many years.[3]
[2]DPP v McKay [2021] VCC 1782, [6] (‘Reasons’).
[3]Ibid [52], [61]–[62].
The applicant could not remember living with both parents at any time when they were together. His father was severely violent towards his mother, and went to prison many times for violence against multiple partners. The applicant reported that his father had continued to intimidate and try to control his mother for years, and had terrorised her partners.[4]
[4]Ibid [53].
The applicant was taken from his mother when he was six years old and lived with his father for six months, who was extremely neglectful and abusive. He reported being flogged repeatedly, left at stranger’s homes and being molested.[5]
[5]Ibid [54], [64].
The applicant’s last contact with his father was at the time of his arrest in July 2020, when his father was staying at his house. The applicant’s mother had a breakdown and began drinking heavily when the applicant was aged 16. The applicant’s mother has nine children.[6]
[6]Ibid [54]–[55].
The applicant left home when he was 13 years old. At age 16, he was couch surfing and then rented a property in Lalor with his then partner, who was 25 years old. That relationship lasted three years. When the applicant was 20, he formed a relationship with a woman named Elise, who he lived with over the course of seven years. The applicant and Elise had a daughter and a son together, aged 11 and 9 (at the time of sentencing). The applicant and Elise separated due to the applicant’s drug use. The applicant’s current partner (of six months), Catherine Angwin, attended his plea hearing.[7]
[7]Ibid [56]–[58], [60].
The applicant was diagnosed with child behaviour disorders, as well as post-traumatic stress disorder and obsessive-compulsive disorder in adulthood. The applicant also reported diagnoses of paranoid schizophrenia, and said that he heard voices even when drug free. The applicant also began self-harming at age 16, and reported suicidal ideation. The applicant began using cannabis at age 12, and by age 14 was using methamphetamine and heroin, which continued until the applicant formed the relationship with Elise at age 20. At that time, the applicant was using cannabis but nothing else. Following the separation from Elise, the applicant relapsed. Prior to his arrest he was using heroin, ice, GHB and cannabis daily, as well as drinking heavily. The applicant was admitted to the Northern Hospital psychiatric ward twice in 2016 owing to drug induced psychosis. The applicant is open to attending drug rehabilitation, and has been placed on methadone every time he has been to prison, but has not continued the dose once released back into the community, where he has subsequently relapsed.[8]
[8]Ibid [66]–[73].
Sentencing remarks
The judge noted that the 22 offences committed by the applicant were all ‘serious enough’,[9] and that the offending conduct ‘seriously escalated between the two series of offences’, with the applicant engaging in an ‘eight-hour offending rampage’.[10] Overall, the judge assessed the applicant’s moral culpability as being ‘very high’.[11]
[9]Ibid [39].
[10]Ibid [42]–[43].
[11]Ibid [45].
The judge considered the legislative purpose of charges 5, 7 and 9, as well as charges 2 and 6, and noted that with offences of this type, general deterrence, denunciation and just punishment must be given significant weight.[12]
[12]Ibid [47]–[49].
The judge accepted that the applicant had entered ‘relatively early’ guilty pleas, and that those pleas have significant utilitarian benefit, particularly in a COVID-19 environment. The judge noted that the effects of the COVID-19 pandemic were also relevant because of the increased burdens on the applicant of being incarcerated during a pandemic.[13]
[13]Ibid [100].
The judge found that the pleas indicated the applicant’s acceptance of responsibility for his offending conduct and a willingness to facilitate the course of justice, but did not accept that the applicant was genuinely remorseful.[14]
[14]Ibid [94], [96].
The judge accepted that the applicant was born into disadvantaged circumstances and was exposed to violence and drug abuse from a very early age. The judge cited Bugmy v The Queen (‘Bugmy’)[15] and said that he took the applicant’s disadvantaged upbringing into account as part of his personal circumstances, such that it operated to reduce the applicant’s moral culpability ‘to a limited extent’. The judge also stated that he moderated the weight given to general and specific deterrence.[16]
[15](2013) 249 CLR 571; [2013] HCA 37.
[16]Reasons, [98].
The judge considered a psychological assessment report provided by psychologist, Ms Cidoni. She opined that the applicant suffered from a number of syndromes including post-traumatic stress disorder, borderline personality disorder, major depression, and generalised anxiety and substance use disorder. She considered that the use of illicit substances was high in the offending period and would have produced a loss of contact with reality.[17]
[17]Ibid [76]–[77].
The judge accepted that principle 5 from R v Verdins (‘Verdins’)[18] was engaged. He considered that the mental health conditions from which the applicant suffers would make any sentence imposed weigh more heavily on the applicant than a person in normal health.[19]
[18](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.
[19]Reasons, [86].
The judge also took into account the applicant’s Aboriginality, noting that the applicant’s application to have this matter heard in the Koori Court was unsuccessful.[20]
[20]Ibid [99].
The judge considered the applicant’s ‘appalling’ prior criminal history. He summarised this as constituting 13 court appearances, including 32 dishonesty offences, 15 driving offences, 12 offences involving the contravention of court orders or bail conditions, eight offences against the person, six offences under the Family Violence Protection Act 2008, two drug offences and one charge of possessing a controlled weapon without excuse.[21]
[21]Ibid [89].
The judge took into account current sentencing practice, though noted it was only one of a number of considerations taken into account. The judge noted that the standard sentencing regime did not apply in the applicant’s case, however the aggravated offence of recklessly exposing an emergency worker to risk by driving (charge 9) was a category 2 offence under the Sentencing Act1991, and thus the Court was required to impose a mandatory sentence of imprisonment to be immediately served.[22]
[22]Ibid [101]–[105].
The judge noted that the presumption of concurrency was displaced in relation to charge 9 and charges 5 and 7. The judge also noted that the fact the offences were all committed whilst the applicant was on bail enlivened s 16(3C) of the Sentencing Act 1991, which meant the presumption of concurrency did not apply in sentencing the applicant for the breaching offences. However, the principle of totality was not displaced in relation to the operation of the statutory presumptions of cumulation in respect of all the charges.[23]
[23]Ibid [106]–[108].
The judge further stated:
I accept totality it [sic] an important consideration in sentencing given the large number of charges and the overlapping nature of the offences. I must also avoid the imposition of a crushing sentence on you. These considerations will be particularly reflected in my orders for cumulation.[24]
[24]Ibid [115].
The judge noted that charge 9 was a rolled up charge covering the risk the applicant’s driving exposed four police officers to and that he fell to be sentenced for all the criminality involved in that charge.[25]
[25]Ibid [109].
The judge noted that general deterrence, denunciation and just punishment were important sentencing considerations in this case and must be given ‘primacy’. The judge also noted the need to give real weight to specific deterrence and protection of the community, in light of the applicant’s conduct, the involvement of illicit drugs and alcohol in the commission of the offences and the applicant’s prior criminal history.[26]
[26]Ibid [113].
The judge assessed the applicant’s prospects of rehabilitation as being ‘guarded’ and dependent on the applicant’s ability to remain drug free following his release from custody.[27]
[27]Ibid.
Proposed ground 1
Applicant’s submissions
The applicant submitted that the requirement to avoid double punishment in sentencing is well-established,[28] and that the risk of double punishment has been noted, particularly when formulating sentences for driving offences.
[28]Citing Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 and Interpretation of Legislation Act 1984, s 51.
The applicant submitted that the judge failed to acknowledge and account for the overlap in the applicant’s conduct as described by charges 7 and 9. Apart from his comment regarding the ‘overlapping nature’ of the offences, the judge made no remarks regarding the risk of double punishment in his sentence.
The applicant particularly relied upon certain remarks of Priest JA in the case of Berichon v R,[29] wherein his honour stated that it was a matter of ‘common sense’ as to whether an offender was being punished twice for the same act or omission.
[29](2013) 40 VR 490, 501 [50]; [2013] VSCA 319.
The applicant submitted that the conduct described by charges 7 and 9 related to the same criminality, being a hasty attempt to evade apprehension and flee police. Hence, the sentence for those charges should properly have been ordered to run concurrently. This submission was also said to be raised in relation to summary offences 8 and 13.[30]
[30]Though this was not made the subject of proposed ground 1 as expressed.
The applicant noted that the judge ordered that five months of the 15-month sentence imposed on charge 7 be cumulated upon the base sentence of 3 years imposed on charge 9, and that a small amount of cumulation was ordered on the summary offences. The applicant submitted that the order of 5 months’ cumulation constituted double punishment in respect of the same criminality.
Analysis
Pursuant to s 51 of the Interpretation of Legislation Act 1984, a person ‘shall not [subject to any contrary intention] be liable to be punished more than once for the same act or omission’. Both parties accepted that this provision should be approached on the basis of common sense.
In considering the issue of double punishment it is necessary to focus on the acts or omissions said to constitute the relevant offences. It is true that the act of driving is common to both charges. However, the essence of charge 7 is that that the driving causes damage to an emergency service vehicle. By way of contrast, charge 9 is concerned with different harm, namely the exposure of an emergency worker to risk. Hence, although there may have been one physical act of driving, there are two distinct offences which focus on a different harm to ‘different persons or things’.[31] The legislature also plainly contemplated that two different offences may be committed.[32]
[31]R v Bekhazi (2001) 3 VR 321, 329–30 [13] (Winneke P); [2001] VSCA 178, citing Phillips v Carbone (No 2) (1992) 10 WAR 169.
[32]See s 317AF(1)(b) of the Crimes Act 1958.
The two charges were hence distinct offences though it was necessary to recognise that there was some overlap to avoid double punishment. However, the judge expressly did this by accepting that totality was an important consideration given the overlapping nature of the offences. He also made provision for a relatively modest cumulation on charge 7. No error thereby arises.
The applicant did not identify how double punishment principles were breached in respect of summary charges 8 and 13. Though they may have arisen from the act of driving, they clearly seek to punish two distinct acts (being a failure to stop, as compared with a failure to hold a licence). Summary charge 8 was also a rolled up count (involving a failure to stop after damaging three police vehicles and the Toyota van). Despite this the judge made provision for only 2 days’ cumulation in respect of summary charge 8.
In my view, proposed ground 1 is not reasonably arguable.
Proposed ground 2
Applicant’s submissions
In written submissions, the applicant focused solely on charge 9.[33]
[33]The heading to ground 2 in the Amended Written Case for the applicant, dated 10 March 2022 reads as follows: ‘It is submitted that sentence imposed on charge 9 was in all the circumstances manifestly excessive’.
The applicant submitted that, as an offence recently incorporated into the Crimes Act 1958, sentences imposed for the offence of recklessly exposing emergency workers to risk by driving have not yet been considered in sufficient numbers to build up a sentencing profile. Nevertheless, he suggested that an analysis of recent sentences reveals that terms of imprisonment are commonly imposed within the range of some 18 to 20 months.[34]
[34]Citing DPP v Cox [2021] VCC 1942; DPP v Roberts [2020] VCC 1195; DPP v O’Sullivan [2020] VCC 1449.
The applicant accepted that past sentences imposed for like offences are not binding precedents, but noted that promoting reasonable consistency in sentencing practices remains an important plank of maintaining confidence in the justice system. While the judge said that he had attempted to gauge a ‘general yardstick’ from comparable cases, it remained unclear how this yardstick was applied.
The applicant submitted that, having regard to the objective gravity of the offence, the penalty imposed is plainly excessive. The applicant noted that the Crown submitted during the plea hearing that the gravity of the offending was less serious than that described in the case of Nelson v The Queen (‘Nelson’)[35], where a three-year term of imprisonment was imposed for the same offence. The applicant submitted that factors present in mitigation also included an early plea of guilty, applications of principles expressed in the cases of Bugmy and Verdins, and the onerous conditions in custody occasioned by the COVID-19 pandemic.
[35][2020] VSCA 219.
The applicant submitted that, when weighed against other sentences imposed for the same offence, the sentence imposed on charge 9 was manifestly excessive. Further, due to orders made for cumulation upon the base sentence, the resulting head sentence and the non-parole period imposed were crushing.
Respondent’s submissions
The respondent submitted that there was no error. The respondent highlighted the fact that charge 9 was a rolled up charge (involving danger to four police officers), the maximum penalty, and the applicant’s prior convictions.
The respondent accepted that, while Nelson was a more serious example of the offence (in that six police officers were endangered), the applicant’s offending was of a broadly similar nature by an offender with a relevant prior history. The applicant’s conduct was also spread over a longer period of time and included thefts of vehicles and endangering members of the public. It consisted of 10 separate incidents and 22 separate charges, and is best described as a ‘rampage’.
The respondent noted that the judge appropriately considered matters in mitigation, but rightly concluded that general deterrence, specific deterrence and community protection needed to be given real weight. Given the conduct, and the applicant’s prior history, such a finding was unimpeachable. The conduct placed both the community and specifically police in danger, and was committed less than six months after the conclusion of the applicant’s last term of imprisonment and whilst on bail.
Analysis
I accept that both the objective seriousness of the offending and the applicant’s criminal history suggest that considerations of general deterrence, specific deterrence and community protection needed to be given real weight.
However, there were also significant factors in mitigation, including the early plea of guilty in the COVID-19 environment,[36] as well as the judge’s determination that principle 5 in Verdins was engaged. The judge also accepted that the applicant was born into disadvantaged circumstances and was exposed to violence and drug abuse from a very early age. Although the judge made reference to these matters, it is unclear to what extent these mitigating factors, including those set out in Bugmy, were really engaged given the sentence imposed of 3 years.
[36]Worboyes v The Queen (2021) 96 MVR 344, 356–7 [39] (Priest, Kaye and T Forrest JJA); [2021] VSCA 169.
In all the circumstances, including that the offence is still relatively new, I consider that it is reasonably arguable that the sentence of 3 years in this particular case was manifestly excessive. Given this sentence constituted the base in this case it is also reasonably arguable that this may affect the total effective sentence and non-parole period.
Conclusion
For the reasons given, the application for leave to appeal against sentence will be granted in relation to proposed ground 2 only. Leave to appeal in relation to proposed ground 1 will be refused.
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