Director of Public Prosecutions v Baksh-Cowen

[2021] VCC 2122

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

AT MELBOURNE

KOORI COURT

CR-21-01738

DIRECTOR OF PUBLIC PROSECUTIONS

v

HARLEY BAKSH-COWEN

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2021
DATE OF SENTENCE:	17 December 2021
CASE MAY BE CITED AS:	DPP v Baksh-Cowen
MEDIUM NEUTRAL CITATION:	[2021] VCC 2122

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Aggravated Intentional Expose Emergency Worker to Risk by Driving; Theft, Burglary, Handle Stolen Goods

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Bugmyv The Queen [2013] HCA 37; Worboyes v The Queen [2021] VSCA 169; Honeysett v The Queen [2018] VSCA 214; Rossi v The Queen [2021] VSCA 296; DPP v Ogden-Jones [2021] VCC 167; DPP v Johnny Tyrell ( a pseudonym) [2019] VCC 1259; DDP v Meldrum [2021] VCC 1734; DPP v Richards [2021] VCC 657 and DPP v Ghanim [2019] VCC 1271

Sentence:                  Total effective sentence : 2 years and 4 months imprisonment with a minimum of 18 months before being eligible for parole, 410 days reckoned as having already been served.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Offender	Mr J. Barreiro (For Plea)	Matthew White & Associates
Mr A. Cameron (For Sentence)

HER HONOUR:

1Harley Baksh-Cowen, you have pleaded guilty on Indictment to charges of burglary, three charges of theft, two charges of handling stolen goods and one charge of aggravated intentionally expose emergency worker to risk, which is a rolled-up charge.

2In sentencing you for your crimes, I am required to have regard to the maximum penalties for the offences which you have committed.  The maximum penalty for burglary and theft is 10 years' imprisonment, for handling stolen goods is 15 years' imprisonment and for the charge of aggravated intentionally expose emergency worker to risk is 20 years' imprisonment.  There is also the charge of driving in a manner dangerous, a summary offence to which you have also pleaded guilty and which carries a maximum penalty of two years' imprisonment. 

3These maximum penalties reflect the seriousness with which Parliament regards these offences.

4The circumstances of your offending are set out in a document entitled 'Summary of prosecution opening on plea' dated 24 November 2021.  That document represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.  I turn now to the offending.

The offending

5On Saturday, 2 May 2020 you attended a residence in Daley St, Glenroy that was vacant and being renovated.  You gained entry by jimmying open a rear back window and, once inside, removed two bottles of wine from a wine rack in the kitchen and later left them in the rear bedroom.  You also stole an acoustic guitar, a didgeridoo and a television before leaving the property.

6Police later identified your fingerprints from a bottle of wine.  It is these facts that comprise Charge 1, burglary, and Charge 2, theft.

7Charge 3, theft, encompasses the theft of petrol from a BP station in Coolaroo.  At 1.10 pm on Monday, 11 May 2020 you attended the BP service station in Pascoe Vale Rd, Coolaroo in a white Ford Falcon.  You filled the vehicle with $50.19 worth of unleaded petrol before driving off without making any attempt to pay.

8Next, on  22 August 2020, you attended an address in Kelley Grove, Preston and stole a Mazda 3, registration 1BG 6LC, from the driveway, forming the basis for Charge 4, theft of motor car.  You were depicted on CCTV footage.

9On 24 August 2020 Shadhrach Perumal called police to report that his rear Victorian Registration plate, 1NN 5WT, had been stolen from his Mazda 3, which was parked outside his address in Melbourne Avenue, Glenroy.

10On 29 August 2020 at approximately 7.40 am police were driving along Royal Parade, Pascoe Vale South when they observed you driving the stolen Mazda 3 with number plate 1NN 5WT attached to the front.  This forms the basis for the charge of handling stolen goods, Charge 5.

11Police indicated to you to pull the vehicle over, but you failed to do so.  Instead you turned onto Bell Street, Pascoe Vale and then drove off at a fast rate of speed.

12Registration plate 1NN 5WT was recovered by police on 1 September 2020.  Fingerprints from the rear of the number plate returned a positive match for you.

13I now turn to Charge 7, aggravated intentionally expose an emergency worker to risk by driving where the circumstance of aggravation involve a stolen vehicle; Charge 6, handling stolen goods; and Summary Charge 14, dangerous driving.

14At approximately 11.38 am on 1 September 2020 police observed a grey Mazda 3 bearing stolen registration plates 1MY 1ON on the rear, forming the basis for Charge 6, and stolen registration plates 1NN 5WT, part of Charge 5, on the front.  The vehicle was stationary in a parking bay on Finchley Avenue, Glenroy.

15Plain clothes police approached in an unmarked police car and pulled up beside the stolen Mazda 3.  You were sitting in the driver's seat. An unknown male was in the passenger seat.

16You accelerated off at a fast rate of speed.  In doing so, you collided with an unmarked police vehicle causing damage to the rear of the vehicle and forming the basis for Summary Charge 14, dangerous driving.  It is agreed between the parties that you only became aware that the car which you had hit was a police car post that collision.  You have then driven southbound through the Glenroy shopping centre at a fast rate of speed.

17At approximately 1.30 pm police observed the stolen Mazda 3 travelling westbound on Sunset Boulevard, Jacana.  You parked the vehicle on Bates Court, Jacana.

18A police vehicle containing two police members, Detective Sergeant Matthew Wilsonhawe and Senior Constable Brooke Williamson activated their lights and sirens and approached the vehicle southbound on Bates Court and pulled up in front of the vehicle.  Upon seeing police, you accelerated, ramming into the police vehicle.

19A second police vehicle containing a further two police members, Senior Constable Craig Buchan and Senior Constable Telea Hall, approached traveling northbound with their lights and sirens activated and pulled up behind the vehicle.  You placed your vehicle in reverse and rammed the second police vehicle.

20You continued to accelerate forward and backwards into both police vehicles to avoid apprehension, causing moderate damage to all three vehicles and causing a risk to the safety of the four police officers.

21The police officers were continually yelling at you to stop, identifying themselves as police.  Your passenger in the vehicle, David Bull, could be heard yelling at you to stop.

22Senior Constable Brooke Williamson got out of her police car and went to the driver's side of the Mazda yelling, 'Police, stop, get out of the fucking car'.  She then went around to the passenger side of the Mazda, withdrew her police baton, struck the door of the Mazda and pulled the passenger from the Mazda.

23You exited the driver's seat of the vehicle after it became wedged between the two police vehicles and attempted to flee on foot before but were apprehended.

24David Bull was also arrested.

25An acquaintance of yours, Reggie Fairweather, was also arrested at the scene for an unrelated matter.  Police seized and analysed Fairweather's mobile phone.  Police observed a text message that was sent from you to Fairweather at about 12.08 pm that day stating, 'I just smashed in a cop car', a reference to the dangerous driving incident.

26You were transported to the Fawkner police station, where you were deemed unfit for interview by a forensic medical officer.

Gravity of offending

27I turn now to the gravity of the offending.  Whilst serious, I am less concerned about the petrol thefts and charges of handling stolen goods, as they are relatively low level for offences of their type.

28The burglary and theft are obviously concerning.  You have entered private premises, even if then being renovated, and taken items that are deeply personal to their owner, particularly the didgeridoo.

29The most serious of your offending, however, is represented by Charge 7, aggravated intentionally expose an emergency worker to risk by driving, and, to a lesser extent, Summary Charge 14, dangerous driving.

30Charge 7 is a rolled-up charge involving more than one instance of offending, a mechanism which can be advantageous to an offender who might otherwise face multiple charges.  You are, however, to be sentenced for the single offence with the maximum penalty where it sits.  I note it all obviously occurred in close proximity timewise.

31Through your actions you placed yourself and your passengers at risk.

32Obviously, you also placed emergency workers at risk, police members whose very role is to protect and serve the community.

33Parliament has made clear its particular concern for the safety and welfare of emergency workers when carrying out their duties by creating a specific offence to address this sort of offending behaviour. As a further indicator of the seriousness of the offence over and above the maximum penalty of 20 years, this offence is a category 2 offence and the provisions of s5(2H) of the Sentencing Act apply such that you must be imprisoned unless there are 'substantial and compelling circumstances that are exceptional and rare.'  This is not contended in your case.

34Your actions were highly dangerous and the fact that injury did not result was simply a matter of luck.  Your intention was to avoid arrest, with absolutely no regard for the welfare or safety of the victims or the community at large.  The message must be clear and consistent that conduct of this type simply will not be tolerated and that condign punishment will result in appropriate circumstances.

35General and specific deterrence, punishment and denunciation are important factors in the sentencing mix.  I turn now to your personal circumstances.

Personal circumstances

36Each of your parents are Aboriginal, your father a Yorta Yorta man and your mother Palawa, having been born in Tasmania.

37Your upbringing was characterised by instability, violence in the household and early exposure to both drug and alcohol abuse.

38You grew up with your mother in the inner and northern suburbs of Melbourne.  You have three siblings, a sister died of a brain tumour at 18 months of age when you were aged two to three years old. You have two older half-siblings on your mother's side.  Your half-sister Kara is currently in custody.

39Each of your parents were heroin users.  Your father was physically violent to your mother and you recall being a witness to this.  Your household was one of fear.  Whilst your parents separated when you were young they apparently maintained an 'on and off' relationship which finally ceased when you were aged 14 years.

40You also report sexual abuse by a family friend when you were aged approximately five or six years.

41Your school life was difficult.  This was in part borne of your difficult background. In addition to the fact that you were diagnosed with ADHD at a young age and had genuine difficulties learning to read and write, you had to repeat a number of years at primary school and had a teachers aid from Year 7 onwards.  You left school at the end of Year 9.

42Drugs have also been very much part of your life and from a very young age.  From the age of 10 years you commenced drinking alcohol and heavily.  You were apparently alcohol affected on each day that you attended school.  You also used cannabis from the age of 10 and often prior to attending school.

43I accept that this background gives application to the Bugmy principles, that is, the effects of social disadvantage and trauma during formative years do not diminish with time notwithstanding any criminal history. In part they explain that history.  The effects of profound childhood disadvantage endure and must be given their full weight in every sentencing exercise.  As I understood it, both parties submit that these principles have some application in your case.

44I do accept that your moral culpability should be reduced as a result of this social deprivation and disadvantage in your formative years.  Your moral culpability for the offending cannot be equated with that of a person who had committed the same offending but had had the benefit of a stable and normal upbringing during their childhood and adolescence.

45You have never really been in paid employment.

46Your mother most unfortunately died in 2016 from brain cancer, which appears to be the catalyst for your life then unravelling.  Prior to your mother's death you had commenced using ecstasy and MDMA in your late teens but then moved on to speed and methylamphetamine.  You overdosed after your mother's funeral.

47You also began to use ice daily and abusing prescription medication, including Xanax.

48It is in this context that your criminal history and your offending the subject of this indictment and the summary offence occurred.  At the time of your offending you were both homeless and drug addicted

Prior criminal history

49Your prior criminal history does form part of your personal circumstances.

50This history commences on 14 September 2016, when you appeared at the Broadmeadows Magistrates' Court in relation to a charge of trespass.  You were placed on an adjourned undertaking for a period of 12 months without a conviction being recorded.

51On 16 November 2016 you again appeared at the Broadmeadows Magistrates' Court.  On this occasion it was in relation charges of unlicensed driving, use unregistered motor vehicle and use a vehicle in not safe and roadworthy condition.  You were again placed on an adjourned undertaking.

52On 24 January 2017 you appeared at the Broadmeadows Magistrates' Court in relation to a charge of possess cartridge ammunition without a licence and were fined the amount of $200.

53On 13 May 2019 you appeared at the Broadmeadows Magistrates' Court in relation to a range of offending which included making a threat to kill, contravening family violence intervention order, threat to damage property, possess a controlled weapon, possession of drugs, driving offences and various bail offences.  On that occasion you were convicted and sentenced to 117 days' imprisonment with 117 days reckoned as having already been served.  You were also placed on a community corrections order for a period of 12 months with treatment conditions.

54Further weapons, drugs, family violence and bail offences were dealt with at the Broadmeadows Magistrates' Court on 29 October 2019.  You were convicted and placed on a community corrections order for a period of eight months with treatment conditions.

55On 17 April 2020 you appeared at the Melbourne Magistrates' Court in relation to contravening the community corrections order imposed upon you on 13 May 2019, as well as charges of prohibited person carry a firearm, recklessly cause injury, act prejudicially to the security and good order of a gaol, carrying a prohibited weapon, dishonestly retain stolen goods and drug possession.  You were convicted and sentenced to 93 days' imprisonment with 93 days reckoned has having already been served.

56The final appearance in your criminal history is at the Broadmeadows Magistrates' Court on 27 July 2020.  You were dealt with for contravening the community corrections order imposed upon you on 29 October 2019, as well as a range of  offending which included dishonesty, drug possession and weapon possession.  You were convicted and sentenced to 71 days' imprisonment, of which 64 days was reckoned as having already been served.

57This history would mean that the offending the subject of Charges 1, 2 and 3 pre-dated your appearance at the Broadmeadows Magistrates' Court on 27 July 2020, a fact which should be reflected in the penalty imposed for those charges in accordance with the totality principle.

58Obviously you are not to be punished for this criminal history a second time, but it would appear that short, sharp shocks of imprisonment and therapeutic orders designed to foster your rehabilitation are yet to have traction.  It is relevant to the weight that must then attach to specific deterrence, denunciation and protecting the community as well as an assessment of your prospects for rehabilitation.

Reports

59There is an additional factor relevant to the sentencing exercise revealed through a psychological assessment authored by Carla Lechner, psychologist, dated 27 November 2021 and neuropsychological assessment authored by Dr Loretta Evans dated 22 November 2021.

60Ms Lechner did confirm your early exposure to complex developmental trauma.

61Ms Lechner was of the view you presented with stimulant use disorder, emotional and behavioural dysregulation stemming from exposure to complex developmental trauma and genuine cognitive deficits.

62You presented as socially, cognitively and emotionally immature with limited capacity to engage in reflective and consequential thinking. 

63In Ms Lechner's opinion, you were in the extremely low/mildly disabled range of verbal intelligence.  She recommended care in communication with you that required the use of simple language, one bit of information at a time, encouraging a step-by-step approach to decision making and to illustrate ideas with concrete examples.

64She recommended neuropsychological assessment.

65In the report of Dr Evans you had a full-scale intelligence quotient of 70, but Dr Evans saw merit in considering your intelligence quotient on each of the scales.  Your verbal cognition is poor, consistent with low literacy and language abilities.  Your processing speed is also impaired, as is your working memory.

66You can organise and plan on a basic level.

67You are far better with practical or visually based activities.

68In Dr Evans' opinion your clinical and cognitive profile is multifactorial, but you do not present with an intellectual disability.  You do appear to have a learning disorder and she considers that acute intoxication from the age of 10 has hampered your brain maturation and negatively impacted on your ability to learn. You have a mild substance-acquired brain injury.

69I am of the view that the contents of the two unchallenged expert reports allow for some moderation of both specific and general deterrence in your case and further reduce your moral culpability for your offending.

70Mr Baksh-Cohen, you are at grave risk in terms of your functioning if you do continue to abuse drugs and alcohol.  Obviously your risk of reoffending would also be reduced if you could obtain and maintain abstinence.

Plea of guilty and Koori Court

71Your plea of guilty is also relevant.  A limited committal hearing assisted the resolution of the charges and hence reflects a plea at an early opportunity.

72Your guilty plea has utilitarian value in saving the court the time and expense of contested proceedings.  More importantly it has saved  witnesses the need to give evidence.

73Your plea of guilty in the context of the COVID-19 pandemic also has additional utilitarian value, as it provides certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted and many trial dates remain unfixed.

74In Worboyes v The Queen [2021] VSCA 169 at paragraph [39], the Court of Appeal said:

'A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time'.

75This was recently reinforced in the decision of Rossi v The Queen [2021] VSCA 296.

76I do accept that you are remorseful for your conduct.  You made this clear to Ms Lechner.

77All of these factors will be taken into account in your favour.

78Given your parentage, you chose to have your plea take place in the Koori Court.  The objective of the Koori Court is to ensure greater participation of the Aboriginal community in the sentencing process of the County Court through the role played in that process by the Aboriginal elders and respected persons.  Others such as family members and supports are able to contribute to what is referred to as the sentencing conversation.

79The sentencing conversation is designed to assist the reform of an Aboriginal offender through a blend of customary law and English common law.  Participation in the process can be more burdensome than appearing at a traditional plea hearing because of its confronting nature and the inability to hide behind counsel.  You elected to take part in the Koori Court sentencing conversation, given your developing connection with your culture and the desire to express your remorse for your actions personally.

80In Honeysett v The Queen [2018] VSCA 214 the Court of Appeal looked at the Koori Court plea process and determined as follows:

'In our view, in determining the weight to be attached to an offender's participation in a Koori Court sentencing conversation as a mitigating factor, a sentencing court should consider a range of factors, including:

(1) The fact that participation in the process is a voluntary one may be confronting to the offender and will likely involve him or her being shamed.  As noted in Morgan, participation in the process may of itself, be rehabilitative. 

(2) The fact that the offender is, rather than "hiding behind counsel", taking the opportunity to personally:

(a) demonstrate his or her remorse for the offending;

(b) demonstrate insight into the reasons for, and the seriousness and effect of, the offending; and

(c) express any intention to reform and how that will be done, including by participation in available rehabilitative programs.

(3) The court's assessment of the genuineness of the offender's statements during the sentencing conversations, that assessment to take account of all the information before the court. 

Based on the sentencing court's assessment of the quality and genuineness of the statements made by the offender, it is a matter for the individual judge to assess weight in the circumstances of a particular case.  In fixing the sentence, it is the duty of the court to impose just punishment adapted to all the circumstances of the case by reference to the permissible sentencing purposes of general and specific deterrence, any means by which rehabilitation of the offender be facilitated, denunciation of the offending and the need to protect the community'.

81Aunty Jacqui Stewart and Aunty Fay Muir were the respected elders who took part in the sentencing conversation.  Each of the elders challenged you and you were respectful towards them.  They were able to tell you of sorry business in the theft of a didgeridoo and how that would be seen in your community.

82They encouraged you to connect with community and country and to stay away from drugs.

83In my view the Koori Court process was in some ways made more difficult as, in response to the COVID-19 pandemic, those participating in the sentencing conversation, including the respected elders, appeared remotely whilst you sat alone with your legal representation.

84Whilst you have only recently found resource in country and community, I accept your interest to be an authentic one.  I did find your participation in the sentencing conversation to be genuine and I take that and your participation in the Koori Court process into account.  I turn now to your prospects for rehabilitation.

Rehabilitation

85I accept the submission made on your behalf that your drug use and cognitive deficits presents barriers to rehabilitation and place emphasis on the need to protect the community. In that sense your prospects of rehabilitation at present are guarded; however, it is not a case of all hope being lost.

86Dr Evans' report did emphasise the difficulties faced but also the importance of counselling formatted to your presenting issues, stable accommodation and avenues to employment as essential to your successful reintegration into the community. 

87The 410 days which you have spent in custody is the longest time that you have spent incarcerated.  In that sense it is already capable of playing a role as both a sanction and a deterrent for the future.

88I note also that your period of remand to date, and at least for some of any sentence, is still during the Corrections response to the COVID-19 pandemic.  This has, in general terms, meant less freedom of movement, less access to visits and less access to programs making the prison setting more onerous than it would otherwise be.  I take this factor into account.

89You have managed to do courses in food handling, cleaning and a drug and alcohol program.  

90Your remand has played another role.  You have been able to connect with other family members who are also of aboriginal heritage.  They have been a resource for you in terms of teaching you more about your culture and generating your interest in it.  Hopefully this will become of increasing importance to you and steer you towards a different way of life. 

91You have been doing artwork for the Torch Program, which provides art, cultural and arts industry support to Indigenous offenders and ex-offenders in Victoria with the aim of reducing the rate of reoffending by encouraging the exploration of identity and culture through art programs.  You are a talented artist.

92You hope to return to an auntie in Ballarat upon your release, as you have previously stayed with her and managed to stay out of trouble.  Your goals are to find work, get a licence and your own place to live. 

93Now, before I turn to sentencing I just want to check with Mr Cameron and Mr Roper that there aren't any matters that you wish to bring to my attention.

94COUNSEL:  No, Your Honour.

95HER HONOUR:  All right, thank you.

Sentencing

96The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.

97I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.  

98I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case.  I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of totality and proportionality. 

99I was helpfully referred to a number of recent decisions including DPP v Ogden-Jones [2021] VCC 167; DPP v Johnny Tyrell ( a pseudonym) [2019] VCC 1259; DDP v Meldrum [2021] VCC 1734; DPP v Richards [2021] VCC 657 and DPP v Ghanim [2019] VCC 1271 to assist me with the sentencing task for Charge 7, although not all of those cases dealt with the charge of an intentional exposure to risk.

100The charge of aggravated intentional exposure of a police officer to risk by driving is a serious motor vehicle offence under s87P of the Sentencing Act 1991 and I am required to impact your licence, as I am for the charge of driving in a manner dangerous. Accordingly all licences held are cancelled and disqualified for a period of 2 years on Charge 7 and 12 months on the summary charge of dangerous driving, commencing today.

101For charges 1 through to 6 I propose to impose an aggregate sentence, as I am satisfied that those offences are founded on the same facts, or form, or are part of a series of offences of the same or a similar character.  In so doing I also bear in mind the principles of totality and proportionality, which of course have application to all charges on the indictment and the summary charge.

102For those offences you are convicted and sentenced to 14 months' imprisonment.

103For the summary offence of drive in a manner dangerous you are convicted and sentenced to 12 months' imprisonment.

104Charge 7, aggravated intentionally expose an emergency worker to risk by driving, you are convicted and sentenced to two years' imprisonment, which is the base sentence.

105Two months of the aggregated sentence and two months of the sentence imposed for dangerous driving are cumulative on each other and on the base sentence.

106This leads to a total effective sentence of two years and four months' imprisonment; 410 days are reckoned as having already being served pursuant to s18 of the Sentencing Act.  I do see merit in an extended period of supported transition to the community as a means to both protect the community and support your rehabilitation.  Accordingly, you are to serve 18 months before being eligible for parole.

107Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges.  If not for your pleas of guilty I would have sentenced you to a total effective sentence of four years with a minimum of two years and three months before being eligible for parole.

108Thank you, Mr Roper.  Anything I've missed?

109MR ROPER:  Not that I can see, Your Honour.

110HER HONOUR:  All right.  Mr Cameron?

111MR CAMERON:  No, Your Honour.

112HER HONOUR:  All right.  Well, thank you.  As promised, Mr Cameron I'll give you the opportunity to speak with your client.  I thank each of you for your assistance and I'll close the court sine die.

113MR CAMERON:  As Your Honour pleases.

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