Depp v Kehayias

[2020] VCC 2004

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-02176

DIRECTOR OF PUBLIC PROSECUTIONS

v

BILL KEHAYIAS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	20 November 2020
DATE OF SENTENCE:	23 November 2020
CASE MAY BE CITED AS:	DEPP v Kehayias
MEDIUM NEUTRAL CITATION:	[2020] VCC 2004

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr C.M. Terry	Valos Black & Associates
(For Plea)
Ms N. Valos
(For Sentence)

HIS HONOUR: 

1Bill Kehayias, on indictment ending letters BD you have pleaded guilty to two charges of intentionally damaging property.  That crime carries a maximum penalty of 10 years' imprisonment.  On the indictment ending AC you have pleaded guilty to one charge of theft, one charge of reckless conduct endangering persons, one charge of recklessly exposing an emergency to risk by driving and one charge of dangerous or negligent driving whilst pursued by police.  Those crimes carry maximum penalties of 10 years, five years, 10 years and three years respectively.

2You have also pleaded guilty to a number of uplifted summary matters and insofar they are concerned what I simply propose to do is on the charge of unregistered vehicle I simply convict and discharge.  On each of the other charges, that is the uplifted, it will be 30 days concurrent with each other and concurrent with the sentence imposed on indictment AC.

3The indictment BD involves two matters of criminal damage:  one of driving through boom gates and one of breaking a window.  In the overall situation here I do not propose to summarise those and I simply give 30 days' concurrent on each.  That will be 30 days total on that indictment to be served concurrently with the sentence imposed on indictment ending AC.  Again I understand why they are before me, but this is not really about those sorts of charges; it is about driving in a dangerous manner.

4In any event that simply leads me to deal with the indictment ending AC.  The situation is that on about 10 o'clock or so on the night of 15 December 2018 you, Mr Kehayias, drove a Commodore to a 7‑Eleven service station in Ferntree Gully to purchase fuel.  The pumps were not turned on.  You then went to the store and shouted at the attendant.  There are no charges arising out of that.

5At about 11.10 pm you returned to the same service station, waving money at the attendant and he advised you over the speaker that you needed to prepay you fuel.  You tried to get in, but he apparently was frightened and had locked the doors.  In any event a second attendant turned the petrol pump on, you filled the car with petrol to the value of $78.42 and drove from the scene without paying.  That gives rise to the Charge 1 of theft.  That matter was reported to the police.

6At that time police attended and approached the 7‑Eleven and they saw the Commodore beside the petrol bowsers.  You drove the Commodore from the service station, accelerating quickly onto Burwood Highway without slowing or giving way.  The road was wet and three vehicles travelling west had to brake heavily and swerve to avoid a collision.  You also swerved hard to avoid a collision and lost control, fishtailing.  Your vehicle spun 360 degrees and skidded off the road, over a nature strip and into a car park.  The car spun a number of times before you drove back over the nature strip and onto the Burwood Highway in front of another vehicle.

7You drove off at speed in the right-hand lane travelling west.  You were followed covertly by other police.  One of the police officers was driving at 110 in an 80 kilometre zone and you accelerated from him, changing lanes two or three times without indicating.  A second police unit estimated that you were travelling at about 150 kilometres an hour.  You turned left into Scoresby Road travelling south, crossed double lines to overtake other vehicles and caused two northbound vehicles to swerve to avoid collisions. 

8You were travelling in excess of 100 kilometres an hour along Scoresby Road, which is a 60 kilometre zone.  You turned right into Anne Road without indicating and headed west.  You had to brake heavily to avoid collision with another vehicle and travelling through that residential area you were unable to pass due to parked vehicles, swerving from side to side along Anne Road, narrowly avoided a collision with another vehicle entering Anne Road.

9A covert presence was kept up until they lost sight of you near the intersection of Anne Road and O'Connor Road.  It is alleged by the Crown, and quite clearly it does, that your driving between the 7‑Eleven and that intersection placed other road users, namely police and members of the public, at risk of death or serious injury and there is no doubt that that is the case.  That gives rise to Charge 2 of reckless conduct endangering persons.

10On 2 January 2019 you drove that same vehicle to a home of an associate and asked for cigarettes.  You were sent away empty handed.  You returned later that day and drove into the driveway, colliding with a Hilux sedan.  You got out of that Commodore and ran past the window of the house as the person in there called 000 for assistance.  You jumped onto the bonnet of the Commodore and onto the tray of the ute, yelling and angrily demanding a cigarette.

11Police arrived as you were being given tobacco and a cigarette paper.  People went back into the house police, as I say, had arrived and saw you apparently drug affected standing at the front of the ute.  They asked you to sit down so they could discuss the collision between the vehicles with you.  You ran towards a fence and climbed over it before climbing over the roof of the Commodore towards the driver's side.

12One of the police officers grabbed at you with both hands and tried to pull you out of the car.  You managed to get into the driver's seat.  Another police officer went to grab you as you repeatedly revved the engine.  You put the vehicle into reverse and reversed the car at speed with the driver's door still open and the two police officers in the gap between the car and the door.  As you reversed the police officers were both struck by the door.  One fell to the ground and tried to hold onto the door but fell underneath it was dragged down the road for several meters on his back.  That gives rise to Charge 3 of recklessly exposing an emergency worker to risk by driving, and also some summary matters which I have already dealt with.

13Mr Hawking lost his footing and fell to his knees and was pushed outside the path of the car door and was uninjured.  The other police officer was freed as the vehicle hit the gutter and lay on the nature strip at the side of the property until an ambulance arrived.  He suffered extensive bruising and grazes.  You travelled in reverse down the entire length of that particular court before driving away.

14You are not to be sentenced for the injuries that were suffered.  That would be a different charge.  Altogether, however, the seriousness of the offending is exemplified by the fact that the police officer was hurt with extensive bruising and grazes and shows just how close and just how reckless and serious this piece of driving was.  The police officer was later taken by ambulance to a hospital for treatment.

15Later on that night police observed your vehicle travelling in Ferntree Gully.  They followed it as you turned right into the Burwood Highway service road driving on the wrong side of the Burwood Highway and into Dawson Street.  You slowed at the entry to the Royal Hotel car park and police activated lights and siren.  You accelerated quickly, turning right into Mount View Road and left into Willow Road.  You drove dangerously or negligently whilst being pursued by police, who soon lost sight of you and desisted the pursuit.  It is clear that you in that situation were aware of the police presence and drove in that manner.  That gives rise to Charge 4. 

16You were subsequently arrested and I do not need to go through all those matters, but that is the gist of the offending.  There is a victim impact statement from one of the police officers which clearly describes just how dangerous what you did was and it is a situation where it is clear on the material that the police were in very close proximity to the vehicle and were endeavouring, in fact physically endeavouring, to get you out of it.  You were clearly aware of their presence and took a dreadful risk in what you did.

17It is the situation where there has been a letter tendered on your behalf which obviously I take into account, which says it was a split-second decision.  The driving on all the occasions in this particular situation indicate pretty clearly that it is not a split-second decision.  You were aware of what was occurring, albeit drug affected, and went ahead with it regardless.  I take into account obviously the contents of that victim impact statement in this situation and I do not propose to quote from it.

18You pleaded guilty at a late stage, but you still get a utilitarian benefit for that plea of guilty.  It saved what would have been at least one, probably more, trials.  I do not know how that would have all panned out in the long run, but it is certainly a saving to the community.  Remorse is problematic, but you have pleaded guilty in the ultimate and I give you some benefit for that.

19So far as prior convictions are concerned, you do have a relatively extensive prior history going back for years.  Some years ago you were in fact, among other charges, gaoled for an aggregate of six months for assault police and you do have a poor history insofar as driving is concerned.  It is of note that a number of the charges relate to vehicles, of fraudulent use of number plates and that type of thing. 

20There is never much comfort to an accused when they sit in your position.  This is a situation where over that couple of months' time frame it was you placed many people at very serious risk indeed.  It has been put, and I will be coming to this in a moment, that you are endeavouring to rehabilitate.  For these purposes I accept that that is the case, but the real danger is that in those circumstances members of the public are not to be put at that risk and, being blunt about it, police should not have to put up with this sort of thing when they are simply trying to make an enquiry and keep the community safe.

21Obviously community protection in your particular situation plays an important part in this sentencing process, the offending must be regarded as serious and calls for the application of general and specific deterrence, denunciation and appropriate punishment. 

22It is conceded that - sorry, it was originally argued by your counsel that a community corrections order could have been put in the situation here, where you had already done a very significant period of time in gaol, and I could give an extra year on top of that.  It is my view in these circumstances that such a disposition is not really open. The offending is too serious for that.  The other aspect of it is that on a community corrections order, whilst one would give you certainty of release, it would mean that were you to relapse into drug use and start to behave in this way it may be months before anybody brought the matter back to court.

23In a situation of a head sentence with parole, it is for the Parole Board to assess the appropriate risk.  If you start to deteriorate and become a danger upon your ultimate release, and that is a matter for them not me, then the action that can be taken is fairly quick and fairly dramatic.  It seems to me that community protection in this particular situation demands that sort of protection exists.

24Accordingly this must be a sentence which reflects the seriousness of what you did, together with a minimum term.  I have accepted in this situation that I will give a somewhat less than normal minimum term for what I would have otherwise have given and that is because of your behaviour in gaol:  there are clean samples, you have clearly got family support and hopefully when you get out you are able to turn your life around.  That is in effect what has to happen.

25The documents tendered on your behalf included submissions from your counsel.  There are certificates from the gaol.  There are urine testing that has been taken at the goal which indicates you have been drug-free.  There are references from members of your family and I take those into account, certainly in terms of ultimately at least you having some sort of situation in existence which could lead to your rehabilitation.  The prospects of your rehabilitation are up to you, putting it bluntly, and the risk of you reoffending if you use drugs again I think would have to be regarded as high.

26However, as was made clear during the course of the plea, your counsel has outlined a number of matters, many of which I agree with.  You obviously get the utilitarian benefit of that plea of guilty and somewhat limited remorse.  It is put that you now have more of an understanding of the connection between the drug use and gambling and your offending. 

27There is a report on file by Carla Lechner, the psychologist; I have read that.  That contains a history and also indicates the various difficulties that you have.  You did have a very, very difficult childhood and despite being urged to put the provisions or comments in Bugmy into effect in your circumstances I do so and I take into account that you have had a bad background.  But you are nearly 40 years of age at this stage, being 39 as I understand it, and that runs out after a certain period of time.

28You are single man with no children.  Your family was dysfunctional.  You have lived in Melbourne and for one period of time were living in Horsham.  Your father was a heavy drinker and a gambler and then at some stage worked as an interstate truckdriver.  That was when the family shifted to Horsham.  Your father was unemployed for most of that time and I accept on the material before me that you and siblings were subject to abuse and violence for minor infractions.

29When your father eventually left you were about 13 years of age and at that stage you, as has been described in your counsel's submissions, 'rebelled'.  You felt free to do what you liked.  It is clear from that point on that you were expelled from a couple of schools and a couple of institutions and it went from there. 

30You have had a limited work history, but there is nothing to suggest that, if properly motivated and free of drugs, you would not be able to do so.  You obviously started using drugs at an early stage.  The alcohol circumstances are problematic and I accept that your drug habit had escalated at around about the point where this offending occurred.  You had been using methylamphetamine as much as you could get in that period of time.  All those matters put this into a context that does not assist you greatly.

31Upon your ultimate release you have a brother who you may be able to get some employment with.  You apparently have some money from an inheritance, which you want to use to purchase an excavator so that you could work by yourself subcontracting.  As I have indicated, you do on the face of it at least have family support and when the ultimate occasion arrives, when either your sentence is complete or hopefully the Parole Board grant you parole, you are able to satisfactorily achieve the outcomes that you now say that you wish to do or that you wish to achieve.

32There is not much more I can say. This is a situation which comes down to in my view very dangerous driving indeed and that is exemplified by the fact that two policeman were put in a very precarious set of circumstances.  Only a salutary sentence can signify the danger of what you did and so far as other people are concerned make them aware that if you drive like this and put people at risk like this you are going to receive significant gaol sentences indeed.

33In any event, as I think I have already mentioned, on the two charges of criminal damage, 30 days concurrent with each other and that 30 days be concurrent with the second indictment.  On that indictment, that is ending AC, Charge 1, 30 days concurrent; Charge 2, two and a half years; Charge 3, four years; Charge 4, 18 months.  I direct that 15 months of the sentence imposed on Charge 2 and nine months of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 3.  That gives an effective head sentence of six years.  I direct that you serve a minimum term of three and a half years before becoming eligible for parole.

34I direct that 661 days be reckoned has having been served under that sentence.  Pursuant to s.6AAA I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of nine years with a minimum term of six months.  On Charge ‑ ‑ ‑

35TIPSTAFF:  Minimum ‑ ‑ ‑

36HIS HONOUR:  Sorry?

37TIPSTAFF:  Minimum of six years.

38HIS HONOUR:  Minimum of three months - three years.  Sorry, minimum of three and a half.  What did I say?

39TIPSTAFF:  I think you said nine - under 6AAA you said nine with a six months.

40HIS HONOUR:  No, no.  Sorry.  Yes, thanks, John.  Yes, 6AAA, nine years with six years' minimum term.  On Charge 3, licence cancelled, disqualified for 18 months; Charge 4, licence cancelled, disqualified for 12 months.  That disqualification is served concurrently with that for Charge 3. 

41For completeness on the Charge A summary matter, 30 days concurrent; Charge B, 30 days concurrent; Charge C, convict and discharge; and Charge D, 30 days concurrent, be concurrent with each other and concurrent with the sentences imposed on the indictments. 

42All right, are there any other orders I have to make or ‑ ‑ ‑

43MR CORDY:  Disposal order, Your Honour.

44HIS HONOUR:  I made that the other day, so that is all right.

45MR CORDY:  Made that?  Thank you.

46HIS HONOUR:  Yes. 

47MR CORDY:  Thank you.

48HIS HONOUR:  Nothing else? 

49MR CORDY:  No, Your Honour.

50HIS HONOUR:  All right, yes, thanks, Mr Cordy.  Thanks, Ms Valos.  Yes, thanks, John.

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