Director of Public Prosecutions v Alexander

[2023] VCC 832

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02476

DIRECTOR OF PUBLIC PROSECUTIONS

v

CONOR ALEXANDER

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2023
DATE OF SENTENCE:	24 May 2023
CASE MAY BE CITED AS:	DPP v Alexander
MEDIUM NEUTRAL CITATION:	[2023] VCC 832

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Plea of guilty – aggravated burglary – theft – driving offences – mental health – illicit substance use – early plea of guilty

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] HCA 37

Sentence:                  Total effective sentence: 2 years and 7 months, 19 months to be served before being eligible for parole; licence cancellation and disqualification for 3 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms V. Worrell	Office of Public Prosecutions
For the Accused	Mr N. Rudston	Emma Turnbull Lawyers

HER HONOUR:

1Conor Alexander you have pleaded guilty on indictment M10763854 to one charge of aggravated burglary, one charge of theft, two charges of driving while pursued by police and one charge of possession of a drug of dependence.

2In addition, you have agreed to related summary offences being dealt with and have pleaded guilty to one rolled up charge of driving whilst disqualified (Charge 11), one charge of resisting an emergency worker on duty (Charge 21) and one charge of drive a vehicle whilst exceeding the prescribed concentration of drug (Charge 23).

3The maximum penalty for aggravated burglary is 25 years' imprisonment, for theft it is 10 years, for dangerous driving while pursued by police it is 3 years, for possess drug of dependence it is 5 years, driving whilst disqualified is 240 penalty units or 2 years, resist emergency worker is 60 penalty units or 6 months and driving whilst exceeding prescribed concentration of drug, in your circumstances, is punishable by 12 penalty units.

Circumstances of the offending

4The agreed factual basis of your offending is contained in the Summary of Prosecution Opening for Plea dated 11 March 2022. This document was tendered at your plea and what now follows is a summary of the offending for which you are to be sentenced.

5At approximately 11.46 pm on Sunday April 11 2021, you attended an address in Derrimut. You forced entry into a Toyota belonging to Mr Ahmad Hanes[1] which was locked and parked on the street outside his home. You searched the vehicle and attempted to start the car without a key.

[1] A pseudonym.

6You located a remote control for Mr Hanes’ garage inside the Toyota and used it to open the garage attached to his home and you entered the property. As you entered, you were observed on CCTV footage removing what appeared to be a firearm from your backpack. You later told police in an interview that it was not a real firearm. Mr Hanes, his wife and two children, who were aged 10 and 12 years old, were inside their home and at the time they were unaware of your entry. This is Charge 1 – Aggravated Burglary.

7You got into Mr Hanes’ Mercedes Benz which was parked in the garage and you searched the car, finding the keys in the centre console. The car also contained numerous other items of value belonging to Mr Hanes. You then started the car and drove it, and its contents, away from the address. The total value of the stolen items was later determined to be over $19,000.

8At this time, your driver's licence had been cancelled and you were disqualified from obtaining a new licence. This is Charge 2 – theft, and the related summary Charge 11– or part of it - driving whilst disqualified. 

9A short time later at approximately 2.15 am on 12 April 2021 you drove the Mercedes Benz north on the Western Ring Road in Sunshine North. Brimbank Highway Patrol police were stationed in a marked car along the Ring Road and they recorded you to be driving at a speed of 133 kilometres an hour in a 100 zone.

10Police activated their lights and siren and attempted to intercept you however, you did not stop and increased your speed as you drove away from them. Your vehicle was pursued by multiple police patrols for approximately 2 kilometres during which time you were recorded to be driving up to 196 kilometres an hour in a 100 kilometre zone. Police ended the pursuit as it was considered too dangerous to continue and you exited onto the Tullamarine Freeway. This is Charge 3 – dangerous driving while pursued by police and related summary Charge 11 – again part of that rolled up charge - drive whilst disqualified.

11At approximately 9.33 pm the following day, 13 April 2021 you were observed by Brimbank Highway Patrol on Sharps Road, Tullamarine, driving the stolen Mercedes Benz at a speed of 135 kilometres an hour in a 70 zone. Police activated their lights and siren and commenced a pursuit. You did not stop, and another police vehicle joined the pursuit. You continued driving onto the Western Ring Road and then onto the Western Freeway.   

12You continued driving at approximately 200 kilometres an hour in a 100 zone. You were observed erratically changing lanes, weaving between other vehicles, and using the emergency lane to overtake them.

13Police erected stop sticks near the intersection of Troupes Road in Rockbank which punctured the Mercedes' tyres and caused it to stop after it travelled a further 100 metres. You fled the car on foot until you were tackled by police. This is Charge 4 – dangerous driving whilst pursued by police and related summary Charge 11– drive whilst exceeding prescribed concentration of drugs and drive whilst disqualified.

14After being tackled by police, you resisted arrest which resulted in an officer sustaining a broken hand. This is related summary Charge 21 - Resist emergency worker on duty.

15A preliminary oral fluid test conducted at this time indicated the presence of methylamphetamine in your system and this was confirmed by a later test conducted at Sunshine police station. This is related summary Charge 23 – drive whilst exceeding prescribed concentration of drug.

16Inside a satchel you were wearing at the time, police found a plastic bag containing a substance confirmed to be 0.78 grams of methylamphetamine. Located inside the stolen vehicle was a plastic bag containing green vegetable matter confirmed to be 22 grams of cannabis - This is Charge 5 – Possession of drug of dependence.

17You were taken into custody on this day and remained on remand until released on bail on a deferral of sentence exactly one year later. The majority of the victim's property was not returned and his car was extensively damaged and written off by his insurance company.

Nature and gravity of offending

18In formulating an appropriate sentence I must have regard to the gravity of your offending. An overview of this, is that you have engaged in three related incidents that took place over 48 hours from 9.30 pm on 11 April to 9.30 pm on 13 April 2021.

19The aggravated burglary charge involved you entering the garage area of the victim's home. Fortunately, both he and his family were unaware of your entry. No doubt they would have been shocked and disturbed to see the CCTV footage of you in their garage with an imitation firearm. You stole their car, and it was extensively damaged to the point it was written off. Clearly, this is very serious offending.

20The next two incidents involve you driving to evade police. On each occasion you drove at very high speeds in a very dangerous manner. On the first occasion the police abandoned the pursuit as it was too dangerous to continue. On the second occasion you were seen driving erratically weaving between vehicles driven by members of the public, as well as using the emergency lane to overtake vehicles. Your driving was both appalling and outrageous, this is particularly so, in light of the fact that you were intoxicated by methylamphetamine at the time. It is fortunate the police were able to stop and arrest you without any serious accident.

Personal circumstances

21You are currently 27 years old and you were 24 years old at the time of the offending.

22You grew up in Diamond Creek and Eltham. You lived primarily with your mother and three half-siblings, after your parents separated when you were about a year old.

23You spent your weekends at your father's home which proved to be traumatic as you experienced verbal and physical abuse by your stepmother and stepsister. Eventually these visits stopped when you reported this abuse to your mother. The abuse from your stepmother and stepsister and your father's dismissive attitude of it, deeply affected you.

24Issues at home led you to be withdrawn at school and you suffered bullying which was so severe that you were forced to change schools. Unfortunately, even after this change the bullying continued until the end of high school.

25After finishing school, you completed a vehicle repair apprenticeship between 2017 and 2019.  You reported to doctors at this time that you were experiencing significant work-related stress and bullying at this job which led you to search for other employment.

26You suffered from poor mental health during your childhood, and this has persisted throughout much of your life. You reported that you first began experiencing depression and anxiety at about 13 or 14 years of age. You received counselling and began taking medication. Additionally, from around this young age you engaged in self harm and experienced suicidal thoughts which have resulted in you making multiple attempts on your life.

27At around age 18, you reported being diagnosed with Bipolar Affective Disorder for which you were prescribed medication. Based on what you have advised your counsel, Forensicare clinician, Ms Finlay, and from your medical history, it appears you have had several periods in your life where you have been proactive in seeking treatment for your mental health. Unfortunately, you have been unable to sustain such engagement in the context of significant and pervasive substance abuse.

28The torment you experienced at school coupled with your mental health issues seems to have been the catalyst for your extensive history of drug use. You began drinking and using cannabis by age 13 and by age 18 you had also used MDMA, cocaine and GHB. You were introduced to methylamphetamine use at around age 18 and this eventually escalated to the point where you were using up to 1 gram a day. 

29A Senior psychologist, from the County Court Mental Health Advice and Response Service, 'MHARS' who assessed you in 2022 opined that your drug use coincides with periods of stress in your life and is used to manage difficult emotions. Invariably it has the opposite effect to that intended and worsens your mental health and has contributed to your offending behaviour. 

30Despite the tumultuousness of your life, it is positive that you retain the support and love of your family.

31You admit a prior history involving 3 prior court appearances. You have been sentenced to community corrections orders and gaol in the past. Your prior history contains convictions for offending similar to that now before the court.

Procedural and deferral history

32Your matter has had a drawn-out history for a variety of reasons. You first pleaded guilty to these charges on 31 March 2022. At that hearing you were arraigned and I ordered a pre-sentence report from both Corrections and MHARS and adjourned for a short time. You were assessed as suitable for a community correction order, however given your history, the fact you had been in custody for approximately 12 months, the support from your partner and the promise of work with Mitchell Cameron it was my view that a deferral of sentence would allow you to demonstrate your commitment to rehabilitation before embarking on a community correction order. Therefore, when the matter returned on 12 April 2022 I adjourned for a day until 13 April 2022 and released you on bail.

33On 10 May 2022 your bail was varied to change your residential address from your partner's address to live with your mother. On 9 August 2022 the police attended your mother's address and discovered you had not been living there for several weeks.

34You were remanded approximately one month later for offending that involved dishonesty and driving offences. Some old offending, from early 2021 had also re‑surfaced. On 27 September 2022 at Heidelberg Magistrates' Court you pleaded guilty to the outstanding charges and you were sentenced to 2 months' imprisonment, 23 days was reckoned as pre-sentence detention and you were also sentenced to a 12 month community correction order.

35On 13 October 2022, you returned before me for a review of the deferral of sentence. At this time you were in custody and due for release on the community correction order. I gave you a further opportunity on a deferral of sentence in the hope that you would abide by the community correction order imposed by the Magistrate at Heidelberg Court. On 26 October 2022 you were released from custody, and it appears you offended within a day of your release.

36On 11 November 2022 you failed to appear at a deferral review before me and I issued a warrant for your arrest. On 6 December 2022 it is alleged you committed further offences and by 21 December 2022 you were remanded for those offences and the warrant issued by me was executed. You have been in custody since this time.

37In total you have now spent 520 days in custody that are attributable to this matter as pre-sentence detention.

Matters in mitigation

38There are a number of factors I must take into consideration by way of mitigation.

Plea of guilty

39You have pleaded guilty at an early stage. This has facilitated the course of justice, in that you have spared the need for the victim to give evidence and you have spared the court the time and expense of a trial.

40Your plea first occurred during the COVID-19 pandemic at a time when the courts were stalled and suffering the crippling effects of the pandemic. The aftermath of the backlog is still being felt. I take into account that through your plea you have eased the burden of trials on the court and as such I propose to allow you a considerable discount for your plea of guilty[2].

[2] Worboyes v The Queen [2021] VSCA 169

41In addition, I accept that your plea is evidence of your acceptance of responsibility for your offending behaviour and also demonstrates genuine remorse.

Covid conditions in custody

42Your remand has fallen into two discrete time periods. The first of these occurred during the height of the COVID-19 pandemic. The pandemic resulted in onerous conditions in custody that involved quarantines, lockdowns, limited access to programs and no in‑person visits, amongst other things. I take into account the hardships you experienced in custody.

Childhood deprivation and mental health

43I do not accept that you experienced childhood deprivation to the extent that would enliven the principles in Bugmy, as submitted by your counsel. I do however take into account your dysfunctional and disturbed childhood in a general way and consider it has relevance, it has clearly influenced and shaped the man that you are today. It is obvious that you have suffered and continue to suffer from poor mental health which has led you at times to self-medicate with illicit substances. You have battled with your addiction and have at times engaged well in therapy. It is hoped in the future you will be able to take the next step and achieve sustained abstinence from drugs and stability in your mental health.

Rehabilitation

44At the age of 27 you are still relatively youthful. You have the ongoing support of family, in particular your mother. In the past you have been able to engage with counselling. At your first court hearing several certificates that you had obtained whilst in custody were tendered, including a 3-hour alcohol, drug and anger course and a respectful relationships course. Mr Alexander, I urge you to not give up and I encourage you, you have the power to change – it all starts with you.  I wish you every success.

45OFFENDER:  Thank you.

46HER HONOUR:  Given all that has occurred on the deferral of sentence and your past criminal history I would have to consider your prospects for rehabilitation to be guarded. I do however, believe that you will, in time, be able to make the changes you need in the future.

Sentencing principles

47The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

48Given the seriousness of your offending general and specific deterrence must be given considerable weight in the sentencing synthesis.  I denounce your offending behaviour in the strongest terms possible. I regard protection of the community to be a relevant consideration in your case. I consider this is best achieved by your rehabilitation with supports and interventions to address any ongoing issues you have and to prevent any relapse, for this reason I have provided a period of time on parole.

49I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant to your case.  In particular, I have had regard to the sentencing landscape for the offending before me, particularly the aggravated burglary and dangerous driving charges.  Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.

50The principles of totality, proportionality and parsimony are also very important considerations. They require me to make sure the total sentence is appropriate for the total criminality. I have taken these principles into account in fixing the individual sentences and the structure of the sentence I will now impose. 

51Mr Alexander you are convicted of each charge and I sentence you as follows

·        Aggravated burglary charge, Charge 1, 2 years, that is the base sentence.

·        Charge 2, theft, I sentence you to 9 months.

·        Charge 3, dangerous driving while pursued by police, 6 months.

·        Charge 4, dangerous driving while pursued by police, 8 months.

·        Charge 5, possession of a drug of dependence, 1 month.

·        Summary related Charge 11, drive whilst disqualified, 3 months.

·        Summary related Charge 21, resist emergency worker, 3 months.

·        Summary related Charge 23, drive a vehicle while exceeding the prescribed concentration of drug, you will be convicted and fined $250.

52Now in relation to Charge 2, 2 months of that will be cumulative, 1 month on Charge 3 will be cumulative, 2 months on Charge 4 will be cumulative, 1 month on summary related Charge 11 will be cumulative, and 1 month on summary related Charge 21 will be cumulative.

53So what that means, the total effective sentence is 2 years and 7 months and I order that you serve a period of 19 months before being eligible for parole.

54I declare that you have served 520 days by way of pre-sentence detention, and I order this be deducted from your sentence.

55I note that I have already made orders with respect to your licence however, I think from my calculation, I have not made any order in relation to your licence on Charge 2, which is a theft of motor car charge and given I have convicted you of it, I must cancel your licence and disqualify you for a period, and I have determined that period to be three months.

56Pursuant to s6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a term of imprisonment of 3 years 10 months with a non‑parole period of 2 years and 5 months.

57So is there anything further?

58MS WORRELL:  There's just a disposal order as well, Your Honour, I believe.

59HER HONOUR:  Yes, all right.  I'll make a disposal order for the drugs and I believe a draft of that order will have been forwarded, so I will sign that and forward it with the other orders.

60MS WORRELL:  Thank you, Your Honour.

61HER HONOUR:  All right, we will adjourn.

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