Director of Public Prosecutions v Bates
[2023] VCC 86
•2 February 2023
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-22-01929
CR-22-01774
Indictment No. M11977027.1
N10731990
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID BATES |
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JUDGE: | HIS HONOUR JUDGE DOYLE |
WHERE HELD: | Latrobe Valley |
DATE OF PLEA: | 18 January 2023 |
DATE OF SENTENCE: | 2 February 2023 |
CASE MAY BE CITED AS: | DPP v Bates |
MEDIUM NEUTRAL CITATION: | [2023] VCC 86 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Plea of guilty – multiple charges including burglary, theft, endangering persons, possession of methylamphetamine – various summary offences uplifted to this Court – relevant and lengthy criminal history – Verdins limbs 4 and 5 – substantial victim impact – totality – injuries as extra curial punishment
Legislation Cited: Crimes Act 1958, s 76, s 74(1), s 81(1), s 23, s 88, s74AA(1); Drugs, Poisons and Controlled Substances Act 1981 s73(1); Sentencing Act 1991 s 87P(f)(iii), s 89(1)
Sentence: Convicted and sentenced to 4 years and 10 months imprisonment with a minimum of 3 years and 2 months (across both Indictments)
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D Guesdon | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms K McFarlane | McFarlane Criminal Lawyers |
HIS HONOUR:
1David Bates, on Indictment M11977027.1 you pleaded guilty to one charge of burglary for which the maximum penalty is 10 years' imprisonment, two charges of theft, for which the maximum penalty is 10 years' imprisonment, one charge of obtain property by deception – 10 years, one charge of reckless conduct endangering persons – 5 years, one charge of possessing methylamphetamine – 1 year, one charge of handing stolen goods – 15 years, one charge of theft of firearm – 15 years, and two summary offences of committing an indictable offence whilst on bail related to that indictment, for which the maximum penalty is 3 months, and contravene conduct condition of bail – 3 months.
2Charge 5 (reckless conduct endangering persons) is a serious motor vehicle offence pursuant to s 87P(f)(iii) of the Sentencing Act which means licence disqualification is mandatory. Pursuant to s 89(1) I am also required to suspend or disqualify your licence for a period for a car theft.
3On Indictment N10731990 you pleaded guilty to a further charge of conduct endangering persons, for which as I have already said, the maximum penalty is 5 years. You also pleaded guilty to the related summary offences of driving whilst disqualified for which the maximum penalty is 2 years; use unregistered motor vehicle on highway, which has a maximum penalty of 50 penalty units because you have prior conviction for this offence, commit indictable offence whilst on bail – 3 months and contravene conduct condition of bail – 3 months.
4You were born in January 1992. At the time of the offending, you were aged 30 years old. You were living in Tyers.
Circumstances of the offending
5The circumstances of your offending are set out in the two Prosecution Openings filed in relation to the separate indictments and read in open court by the prosecutor. I will firstly deal with indictment M11977027.1 that relates to offending committed in May/June of 2021. At the time of this offending, you were on bail to appear on 28 July 2021 at the Latrobe Magistrates' Court. You were also subject to a community correction order which had been imposed in December 2020 for a period of 12 months.
6Between 22 May 2021 and 12 June 2021, you entered the isolated residence at the property of Trevor and Helga Lee, at Budgeree Road, Budgeree. Mr Lee lived there with Mrs Helga Lee. You stole their 1994 Toyota Land Cruiser with registration FOS513; a leather tool roll containing several tools; garden tools; car jack; and an air rifle.
7On 12 June 2021, Mr Lee noticed that his property had been broken into and that the stolen items were missing. He reported this to police.
8When he was cleaning up the property, he found your healthcare card under the box for the stolen air rifle.
9This conduct is the basis of Charges 1, 2, 3 and 8. So that is the burglary; theft of the tools, garden tools and car jack is Charge 2. Charge 3 is the car theft and Charge 8 relates to the theft of the air rifle.
10On Wednesday 9 June 2021, Ashley Weaving posted an advertisement to sell his Suzuki GSXR750 CC motorcycle. You replied on Facebook messenger using the name Kyle Nott (an alias used by you on Facebook). You wrote, 'Would you be interested in swapping for a Land Cruiser?'. Mr Weaving asked for photos, and you sent photos of the stolen Land Cruiser in a yard showing the side, front and interior of the car, but not the registration details.
11On Friday 11 June 2021 you went to Mr Weaving’s address and traded the stolen Land Cruiser, for the Suzuki motorcycle, motorcycle gear and $2,000 in cash. This is the basis of Charge 4 – Obtaining property by deception.
12Mr Weaving asked you for identification which you said you did not have. He told you that the motorcycle had very little petrol and directed you to the closest BP service station.
13On 12 June 2021, he noticed that there was fresh scratching on the ignition barrel of the Land Cruiser. He contacted the Mornington Police Station who told him that the Land Cruiser was stolen.
14Police recovered the stolen vehicle and attended the BP on Point Nepean Road, Dromana, the closest BP service station to Mr Weaving’s address.
15CCTV footage from the service station shows you arriving on the Suzuki GSXR750cc motorcycle shortly after the transaction with Mr Weaving on 11 June 2021. You purchased petrol before leaving on the motorbike.
16The Land Cruiser was taken to T&M Auto Yard in Sale, to be returned to Mr Lee. On 17 June 2021, Detective Senior Constable Allen attended the T&M Auto Yard and located and seized various items from the vehicle belonging to Mr Lee.
17DNA on an icy pole stick in the Land Cruiser was a positive DNA match with your DNA.
18Also on 12 June 2021, Sanfar Saleemdeen left his home in the Sale area to travel to Traralgon in his Subaru Forester. En route, he noticed signs indicating road closures from water over the road. He pulled over and commenced to make a U-turn, very cautiously. Riding the Suzuki motorcycle, you obtained from
Mr Weaving, you collided with the driver’s side door of his Subaru as he was attempting to make the U-turn.19Police were called. The motorcycle was badly damaged. The Subaru driver’s side door was caved in and there was impact damage to the roof area immediately above the driver’s side door; and the windscreen had been displaced. I can indicate I have looked at the photographs in the depositions and the damage to the vehicle was substantial.
20Collison reconstruction expert, Sergeant Robert Hay, concluded that you were likely at fault and that you were travelling over the speed limit prior to the collision, consistent with witness observations.
HIS HONOUR: There is just one thing I should mention, I looked at the depositional material, I looked at Sergeant Hay’s statement. He appears to suggest that the collision took place with Mr Bates on the wrong side of the road. Is there any dispute about that?
MS McFARLANE: We cannot dispute it, Your Honour. We did not get an expert to assess it.
HIS HONOUR: Sorry, it is just something that occurred to me and I should have given you - it was not in the opening.
MS McFARLANE: No, it is not, Your Honour.
HIS HONOUR: But it seemed to me that is what is being said.
MS McFARLANE: Given that it was not - we did not seek to get an expert to dispute whether he was on the wrong side of the road, so I ask you to take that into consideration, Your Honour.
HIS HONOUR: I will just check. Ms Guesdon, is that the prosecution position? It is? Yes. Ms McFarlane, you do not take issue with that? I should have raised that at the beginning.
21You, Mr Bates, were taken to Alfred Hospital with serious injuries. Blood samples were taken from you at about 8:55pm, which revealed approximately 0.58mg/l of methylamphetamine in your system. You also had amphetamine in your system, but my understanding is that was a metaboliser quantity taking methylamphetamine.
22Dr Jason Schreiber from the Victorian Institute of Forensic Medicine concluded the presence of very high levels of methylamphetamine, which would have negatively impacted on your ability to operate a motor vehicle thereby putting other road users at risk. The conduct endangering persons charge relating to this collision is based on excessive speed and the presence of methylamphetamine.
23At the scene of the collision police searched your backpack at the scene and located two zip-lock bags containing small amounts of methylamphetamine. This is the basis of Charge 6 – Possession of a drug of dependence.
24On Thursday 17 June 2021, police executed a search warrant at your home address at Tyers-Walhalla Road, Tyers and located some of the stolen items belonging to Mr Lee.
25A further two motorcycles were located and seized, which were identified as belonging to a person named Martin. This is the basis of Charge 7 – Handling stolen goods.
26As indicated, you were on bail when you committed the offences on this indictment which is the basis of two separate charges of commit indictable offence – Charge 6 relates to the burglary, theft and deception offences and summary Charge 9 relates the reckless conduct endangering persons and the drug possession offence.
27When interviewed you said you had no recollection of these events because of the collision.
28I now turn to Indictment N10731990 in relation to the incident on 11 April 2022. At the time of this offending, you were bailed to appear at the Latrobe Valley Magistrates' Court on 3 May 2022. One of your bail conditions precluded you from driving a motor vehicle and you were a disqualified driver at the time.
29At 10:19am on Monday 11 April 2022, six police officers attended your address to serve you with a Firearm Prohibition Order. When they got to your driveway, they saw you entering a silver Ford Ranger Utility registration 1UR5PZ at the end of the driveway near the house. You then locked the door of the vehicle and refused to engage with police.
30Detective Senior Constable Allan Bateman parked behind you in an unmarked police car to prevent you from leaving the address. Detectives Ormerod and Sargeant were passengers in that vehicle. Detectives MacInnes, Young and Warwick also attended in a separate unmarked police vehicle.
31Police approached your vehicle and spoke with you through a slightly open window. All police members present were wearing their issued ballistic vests and were clearly identifiable as police.
32At about 10:20am, Detective Ormerod approached the driver’s window and introduced himself. He then provided a copy of the order to you through the slightly opened window. Officers Young and Warwick were standing on the driver’s side, whilst MacInnes and Sargeant were on the passenger side.
33At about 10:27am, details of the order were explained to you whilst you sat in your vehicle. After serving the order, you were requested by police to get out of the vehicle to conduct a search of the vehicle and of your address pursuant to the order.
34You did not comply with the search request. You started the engine and intentionally reversed backwards, eventually colliding into the front of the police vehicle who were positioned directly behind.
35As a result of you starting the vehicle and reversing backwards, Ormerod stepped back from the vehicle, in fear of being struck.
36At the time of collision with the stationary police vehicle, Detective Senior Constable Allan Bateman was seated in the driver’s seat with his foot on the brake resulting in the police vehicle to move a short distance backwards.
37You then drove forward about 5 -10 metres towards your house, manoeuvring between the house and a small picket fence separating the yard and the driveway requiring all police members present to take evasive action. You drove through the small picket fence before leaving your address. You were last seen driving north on Tyers-Walhalla Road and were unable to be located by police. It is your actions with the motor vehicle that constitute the reckless endanger persons in this matter.
38Your driver’s license was disqualified, and the registration of the vehicle had expired on 7 April 2022.
39At about 4:15pm on 12 April 2022, you surrendered yourself at the Morwell police station and were subsequently arrested and interviewed in relation to the incident.
Record of interview
40You said the following in your record of interview:
· “They parked right behind me, and the car was manual, I never put the car in reverse, and it rolled back into theirs”
· “They said that they were serving me with a thing to say that I couldn’t own firearms for ten years I think”.
· You said you tried to drive off “Because they said, they were gunna drag me out of there and hurt me. That’s the whole reason that like, I did drive off, because I was intimidated and scared”.
· When asked if you were on bail, you said, “Yep” and that the conditions of bail, included: “Not to drive a motor vehicle”
· As to why you started the car when you turned you said, “Just to get away from like, feeling the way I was feeling”.
41So that is a summary of the offending on both indictments in this matter.
Victim Impact Statements
42Steven and Helga Lee both made Victim Impact Statements which were tendered and read at the plea hearing by Ms Helga Lee. Steven Lee, who is present in court and was present at the plea hearing, as was Mrs Lee, says as follows:
'I'm a beef farmer. On 12 June 2021 I was working alone clearing severe storm damage to make the farm functional again. I was absolutely gutted when I discovered that someone had cut the padlock chain on our biosecurity signposted gate and stolen my locked Ute and all my valuable tools from inside the shed. It made me angry that I had to source more tools to be able to do my daily work. My distress got worse when I realised how many other things had gone as well. I became angry and disgusted and felt very much violated when I found the house had been ransacked. Finding that someone had rifled through and taken some of our personal documents and valuables I feared the worst, which caused me great distress'.
43Mr Lee says the home is an isolated farmhouse and that his sense of safety has been shattered and he feels a sense of danger if he hears unusual noises at night. Mr Lee says the loss of the Ute hurts him because it had significant sentimental value. It used to belong to a close mate who had died suddenly. When he saw the Ute again it was in a disguised and damaged state. He was sad and disappointed when the insurance company said they were going to write it off.
44He says this: Some things cannot be replaced'. He estimated a financial loss of $25,000. He says the incident has changed the way he looks at people and he no longer trusts anyone and he feels vulnerable and he has never felt this way before. He makes the point that the locks and chains and padlocks are no deterrent to thieves.
45Ms Helga Lee expressed similar sentiments. She said she was away at the time of your offending because their daughter was about to have a child and Mrs Lee was looking after their young granddaughter. It was supposed to be a happy time waiting for the birth of the second grandchild, but it was not because of your actions. She said she no longer feels safe in the home and does not believe security would make any difference.
46
It is obvious the consequences of this offence have been substantial on both
Mr Lee and Mrs Lee, and they are significant matters to take into account in sentencing in this case.
Personal Circumstances
47Your personal history is set out in the defence plea submissions and in the psychological assessment report from Dr Sandra Cokorilo, which was tendered as a defence exhibit. I note that the document is actually signed by Ms Cidoni, but as I understand it that is because Dr Cokorilo was not present to sign it.
MS McFARLANE: That is correct, Your Honour.
HIS HONOUR: But it was written by Dr Cokorilo.
MS McFARLANE: That is correct and supervised. Did you want me to make any further submissions in relation to that?
HIS HONOUR: No, that is fine.
48You are now 30 years old. You were born in Victoria. You had a stable childhood. You had a positive relationship with your parents, who remain together. You also say you have a positive relationship with your two younger brothers aged 22 and 25, who still live with your parents.
49You describe being bullied at school. You had behavioural issues and academically you were below average. You were apparently expelled in Year 9 for fighting but continued with your schooling at Berry Street School. You finished Year 11. You worked at a poultry store from the age of 14, until you took a job with Sterling Car Parts with your father for a few years. You also worked at the Loy Yang Power Station for six months, at the Hazelwood Power Station for three years, and at the Australian Paper Mill from when you were 21 years old for around seven years. You would like to return to the employment at a power station when you are released.
50I note that a considerable period in your 20s has been spent in prison as well.
51You have had one significant relationship in your life with your current partner, Renee Johnston. You have an 11-year-old daughter with her. Your immediate family remain supportive of you, despite your offending and your persistent involvement in the criminal justice system.
52Dr Cokorilo says, in her report, you disclosed previous diagnoses of Attention Deficit-Hyperactivity Disorder (“ADHD”), Post-Traumatic Stress Disorder (“PTSD”), depression and anxiety. You were given medication in childhood for the ADHD. You currently take diazepam to help you to sleep.
53You were sentenced to a period of imprisonment when you were 21 years old. You described to Dr Cokorilo being sexually assaulted in prison. You apparently did not formally report the matter. You say this caused you a massive downward spiral. You described having counselling on and off, but you have never come to the attention of psychiatric services. The report says you have no history of suicidal ideation or self-harm.
54You also describe being a victim of various assaults, one which occurred when you were the victim of a stabbing at the age of 18 whilst incarcerated and another involved a machete attack when you were 26 years old.
55The motorcycle collision, which is the subject of Charge 5 on the first indictment (M11977027.1), resulted in you suffering the following injuries: spinal fractures, a broken thumb, a tear to your aorta, and an injured spleen and bowel. You also say that you sustained memory loss from the collision, although I note from the material you were knocked unconscious at the scene. I have had regard to the contents of the medical documents tendered by Ms McFarlane, your counsel in this matter.
56You also have a long history of drug and alcohol abuse. You were drinking from the age of 14, but you say it never became problematic. Your major problem has been methylamphetamines which you started using daily from the age of 21. You say that you stopped using methamphetamines some 14 months ago. You have also used GHB and ecstasy. In 2008, in prison, you completed a drug and alcohol course. You have now been in prison since you were remanded in custody in April last year, and I will come back to the significance of that.
Criminal history
57You have a lengthy criminal history, with constant court appearances since July 2011 when you were dealt with for burglary, theft and obtain property by deception, and received a community-based order for a period of six months and 40 hours of community work. You were 18 years old at that time. You breached that community-based order, and you were re-sentenced to four months’ imprisonment, wholly suspended, in 2011. On the same day, you were dealt with for 14 charges of driving whilst disqualified and two charges of driving whilst suspended, a burglary and theft, and a series of traffic offences, for which you were sentenced to six months’, wholly suspended for a period of 12 months.
58You breached these suspended sentences by committing further offences and ended up receiving 14 months’ imprisonment with a non-parole period of six months on 19 May 2011. This was your first sentence of imprisonment. Since then, you have appeared before the courts repeatedly for serious driving offences, including previous instances of dangerous driving and reckless conduct endangering life, multiple offences of driving whilst disqualified and driving whilst suspended. You have prior convictions for failing an oral fluid test, breaching community correction orders and community-based orders, drug offences including trafficking, car thefts and other dishonesty offences, including burglary and deception offences.
59In March 2016, you were sentenced for contravening a correction order, and contravening a suspended sentence dating back to 2015, and for what appears to have been fresh offending at that time. For all those matters dealt with in March of 2016, you were sentenced to a period of 30 months with a minimum non-parole period of 24 months. You were ultimately released from that sentence in late 2018.
60At the time of the offences in this case, you were subject to a community correction order, which you received on 14 December 2020, after having served some 147 days pre-sentence detention. Again, the Magistrates' Court dealt with you for a wide array of offences, including handling stolen goods, burglaries, thefts of motor vehicles, multiple charges of driving whilst disqualified, serious driving offences and others.
61You also have a subsequent sentence dealt with in the Magistrates’ Court in October 2022. The offending dealt with then on that occasion was part of an overall spree of offences and occurred in the same time frame as the offences for which I will sentence you today. You were also dealt with for breaching a community correction order imposed on 14 December 2020. For breaching that order you received a period of 147 days for the resentencing in respect of the original offences (which you had already served) and you received a total effective sentence of nine months for the fresh breaching offences which included prohibited person in possession of a firearm and failing to stop a vehicle on police direction. Accordingly, the amount of pre-sentence detention in respect of these matters is limited, because you have been serving a sentence for the bulk of the time that you have been on remand.
62You have an appalling criminal history for the same types of offences covered by the charges in this case. You are a recidivist offender. You have over 40 prior convictions for drive disqualified or suspended; a measure of your total disregard for court orders. You have received numerous chances from the Magistrates’ Court to rehabilitate which have failed; and, in my opinion, the prison sentences you have received have been moderate. Nothing the courts have done so far seems to have deterred you from offending or promoted your rehabilitation.
63You are not to be punished again for your prior convictions, but they are plainly relevant to the assessment of your prospects of rehabilitation and your moral culpability and bring into focus the need for specific deterrence and community protection in sentencing in this case.
Seriousness
64Although the charges to which you have pleaded guilty (other than the theft of the firearm) are often heard in the Magistrates’ Court, this is serious offending. The victim impact statements of Mr and Mrs Lee are a reminder that burglary offences compromise the sense of security of the victims and cause them to feel violated whether or not they are home at the time of the entry. You entered an isolated farmhouse to steal the Lees’ property. This was a violation of their right to feel safe in their own home, and to trust that their property was secure. As Mr Lee said in his victim impact statement, this was an isolated farmhouse with no real way of having security to preclude someone like you from entering and stealing. They do not feel safe anymore, and that is a significant matter for me to take into account.
65The property you stole was valuable and important to Mr Lee and the vehicle had additional sentimental value. In my view the taking of the car involved distinct criminality beyond the other thefts. You did not care about any of that; you just stole whatever you could, including taking the Ute and then selling it. Fortunately, in some respects, Mr Weaving responsibly notified the police as soon as he suspected the Ute was stolen, but you get no credit for that. As Mr Lee said in his victim impact statement, the vehicle was altered and damaged and considered a write off by the insurance company.
66This offending must have involved some planning to get yourself to the isolated property and take away the property you stole. It seems clear it was fuelled and motivated by your methylamphetamine use.
67The deception in selling the Ute following on from the burglary and theft was part and parcel of the same dishonesty but involved a separate victim. You have prior convictions for such offending. I regard your culpability for the burglary and thefts and this ensuing deception as significant.
68Theft of the firearm is a category of theft which carries a higher maximum penalty of 15 years’ imprisonment. This charge cannot be heard summarily. The rationale for requiring such a charge to be heard only on indictment, and the increased maximum penalty, is the need to stop dangerous weapons finding their way unregulated into the hands of criminals and to keep the community safe. You stole an air rifle, a far less serious weapon than most falling under the definition of firearms, so this in my view is a lower end example of that crime although the air rifle has not been located and you have a relevant subsequent conviction in 2022 for being a prohibited person in possession. A sentence involving some cumulation is appropriate.
69
The offence of recklessly endanger person carries a maximum penalty of five years, which is a relatively low maximum penalty. The charge relating to the collision with Mr Saleemdeen involved a high risk of serious injury to
Mr Saleemdeen, given the direct impact with his car and the speed at which you were travelling.
70As I said earlier, I have looked at the photographs and the damage was substantial to the driver’s side door. As it happened it was you who sustained serious injuries, but it could easily have been him. You have a very substantial record for driving offences, including driving under the influence of drugs, and you should not have been riding the bike at all because you were disqualified, although there is no charge for that offence in respect of this incident. You were driving too fast, and you were under the influence of methylamphetamine. The impact with his vehicle was on the wrong side of the road, according to Sergeant Hay. Taking into account all these factors your moral culpability for these offences is substantial.
71For all the offending on this indictment you were on bail and subject a community correction order which are both aggravating features of this offending.
72Your culpability for the reckless endanger persons and the associated drive whilst disqualified offence involving the police is also substantial. You understood these were police officers. They were performing their duty in serving you with the firearm notice. They were lawfully entitled to search your property.
73They observed you again driving whilst disqualified and you placed them in danger, in my view motivated solely by your desire to escape, presumably to avoid the consequences of your offending. The number of police placed in danger was five, which is substantial. Police who act on behalf of the community and risk their safety while attempting to enforce the law against offenders such as you must be protected against this sort of dangerous conduct. Considerations of general deterrence and denunciation for such offending must be given prominence and so too must specific deterrence and community protection given your criminal history, and in particular your driving history
74The offending in this case was a continuation and an escalation of the criminal conduct you have been engaging in for the last decade.
Guilty plea
75Turning to the matters in mitigation, in relation to the charges on Indictment M11977027.1, you pleaded guilty at the first available opportunity. In respect of the charges on Indictment N10731990, you ran a contested committal, but you were discharged of more serious charges at the end of the committal, and you then entered a plea of guilty to the reckless endangerment. Therefore, I regard your plea to that charge as being made at the earliest opportunity.
76You have spared the court what would have been substantial time and resources involved in running trials in respect of these diverse charges. Additionally, you have saved the witnesses the ordeal of giving evidence about these matters and reliving these experiences, in particular Mr and Mrs Lee, in respect of the burglary and theft charges.
77The utilitarian value of your plea is significant, heightened in the current circumstances where the court faces a backlog of trials because of the suspension of trials during the pandemic. I apply the principles in the case of Worboyes v R [2021] VSCA 169, requiring a palpable amelioration of sentence by reason of your guilty plea.
78I am prepared to accept that your guilty plea also indicates some remorse and an intention to facilitate the course of justice. I take into account the letter of apology that you wrote, which was tendered as an exhibit on the plea. It is however difficult to gauge the extent of the remorse you feel for your behaviour.
79The psychological report describes you as suffering from PTSD from a sexual assault in custody. The report indicates you experience linked feelings of hopelessness and depression and some issues with your memory. In the psychological report, Dr Cokorilo said that:
“PTSD means that he is easily activated which leads to higher tensions and distress in the custodial environment that would weigh more heavily upon him ….”
80She also said that:
“In certain situations, there is no exit or escape, which will intensify hypervigilance for signs of threat or personal risk ….”
81I understood this to be a reference to the sexual assault you describe as occurring when you were in prison as an 18-year-old.
Verdins
82Dr Cokorilo also referred to the recurring pandemic lockdowns reducing your access to treatment and increasing your intrusive maladaptive thoughts, which could also impact negatively on your mental health. Based on these passages in the report, Ms McFarlane submitted that limbs 5 and 6 of Verdins apply. The prosecutor, Ms Guesdon, did not argue against these submissions. In my opinion, limb 5 does have some application in this case. I accept that your PTSD increases the burden of imprisonment for you. The application of limb 6 is more difficult. However, on balance, I am satisfied based on the uncontested material in the report, there is a serious risk imprisonment could have a significant adverse effect on your mental health. These matters allow in my view for modest mitigation for penalty, and I have allowed for this in formulating the sentences in this case.
83You suffered substantial injuries in the collision, the subject of Charge 5. It might seem strange but I am required by the law to take these injuries into account as extra curial punishment. Of course, your driving was the cause of these injuries so the weight to be given to them as extra curial punishment is limited. I also consider your injuries significantly increasing the burden of your imprisonment. I take into account the effects of the COVID-19 pandemic and the restricted conditions that have prevailed in the prison system while you have been on remand, as also increasing the burden of your imprisonment, which includes the restrictions on courses and counselling as referred to in the report of Dr Cokorilo.
84Furthermore, no doubt you have been subject to lockdowns during the period you have been in prison. The future is perhaps uncertain with respect to restrictions in the prison by reason of COVID, but there is certainly potential for an increased burden of imprisonment into the future, and I also take that into account.
Prospects of rehabilitation
85Ms McFarlane submitted that your prospects of rehabilitation are real with psychological management, which will occur when you are released. She relied, to an extent, on the reference provided by Mr Adam Scandrett, the operations supervisor at Cleanaway Industrial Solutions, where you had a job up until the offending in April 2022. That reference is dated 20 January 2022, and, at that time, it seems you were progressing reasonably well in your employment.
86While that is positive and indicates that you have the capacity to apply yourself to employment, the significance of the reference in the employment is diminished by the offending in April 2022. On that occasion, you were yet again getting into your motor vehicle to drive, in breach of the court’s disqualification orders; and you were not prepared to comply with the directions of the police; and you placed them in danger by attempting to flee the scene.
87Having regard to the number and nature of the offences in this case and to your extensive criminal history, I regard your prospects of rehabilitation as poor.
Totality
88In formulating the sentence, I have had regard to the totality principle which requires me to ensure that your overall sentence remains just and appropriate for the whole of your offending and I have moderated the orders for cumulation to the extent necessary to give effect to that principle. In applying the totality principle, I have taken into account the sentence of nine months you served imposed in October 2022 for offending committed in the same timeframe as the 2021 offences before me.
89I cannot ignore that you have now been in custody since April of last year, but yet you only had 66 days presentence detention. In deciding the periods of concurrency and cumulation I have had regard also to the fact that you were on bail at the time of all offences before me, which reverses the default position in the Sentencing Act with respect to concurrency and requires sentences to be cumulative unless otherwise ordered. I have also had regard to the separate criminality involved in the various offences in this case.
90I reiterate that general deterrence, specific deterrence, denunciation and just punishment all assume considerable importance in deciding the sentences in this case. Having regard to your prolific and serious offending and in the dangerous nature of your driving offences, community protection is also important. I have had regard to the need to facilitate your rehabilitation as far as is possible.
91The non-parole period is the minimum period of imprisonment that justice requires be served. In fixing a non-parole period, punishment is mitigated in favour of rehabilitation. The benefit of the minimum term is for the purpose of your rehabilitation, but the non-parole period must reflect the objective gravity of the offending.
Sentence
92Mr Bates, on Indictment M11977027.1 (CR-22-01929), you are sentenced as follows:
· Charge 1, burglary – intent to steal, you are sentenced to a period of imprisonment of 22 months;
·
Charge 2, theft, you are sentenced to a period of imprisonment of
10 months;
· Charge 3, theft of motor vehicle, you are sentenced to a period of imprisonment of 12 months;
· Charge 4, obtain property by deception, you are sentenced to a period of imprisonment of 12 months;
· Charge 5, reckless conduct endangering serious injury, you are sentenced to a period of imprisonment of 14 months;
· Charge 6, possess methylamphetamine, one month;
· Charge 7, handling stolen goods, 12 months;
· Charge 8, theft of firearm, 9 months;
· Summary Charges 6 and 7, one month on each charge.
93I make the following orders for cumulation. In relation to Charge 3, six months of that sentence is cumulative on the base sentence of 22 months for Charge 1. Six months of the sentence on Charge 4 is cumulative on the base sentence. Six months of the sentence on Charge 5 is cumulative on the base sentence, and on the other sentences that I am currently outlining. Five months of the sentence on Charge 7 is cumulative and three months of the sentence on Charge 8 is cumulative. There is no cumulation on the summary offences, having regard to the fact that I have taken the fact that he was on bail as an aggravating feature. That makes a total effective sentence on that indictment of 48 months. So that is the first indictment.
94On Indictment N10731990;
· Charge 1, conduct endangering persons, 16 months;
· Summary Charge 4, drive whilst disqualified, nine months;
· Summary Charge 5, use unregistered vehicle on highway, convicted and fined $300;
· Summary Charge 6, commit indictable offences whilst on bail, one month;
· Summary Charge 7, contravene conduct condition of bail, one month.
95Again, I am not making those sentences cumulative as I have taken them into account as aggravating features. Furthermore, in assessing the conduct endangering I have also had regard to the fact that he was disqualified. So in order to avoid double punishment there is no cumulation on the drive whilst disqualified either.
96
That makes a total effective sentence on that indictment of 16 months, and
10 months of that sentence, that is on N107311990, is cumulative on the total effective sentence on the other indictment, which is 48 months, which makes a total effective sentence of 58 months, or 4 years and 10 months. I fix a minimum non-parole period of 3 years and 2 months.
97I allow for 66 days of pre-sentence detention. I indicate pursuant to s 6AAA, but for your pleas of guilty I would have imposed a sentence of 7 years with a minimum of 5 years.
98The ancillary orders sought, was there a compensation order? I have certainly got some documents relating to a substantial compensation order. I think there is a figure there, it was about $23,000 or around that. Ms McFarlane, no objection?
99MS McFARLANE: That is not opposed, Your Honour.
100HIS HONOUR: I will make the compensation order in favour of Mr and Mrs Lee in the terms that are sought. I do not have it in front of me, I believe it was in the range of $23,500. Let me just check.
101MS GUESDON: It was $23,860.
102HIS HONOUR: That is the order that I will make. Are there other ancillary orders?
103MS GUESDON: Just disposal of the methylamphetamine.
104
HIS HONOUR: I will make that order as well. So it is a sentence of four years and 10 months, with a non-parole period of three years and two months with
66 days pre-sentence detention. Those are the orders that I make. Any clarification required for those orders?
105MS McFARLANE: No, Your Honour.
106HIS HONOUR: Thank you, we can turn off the link. I will just stand down.
(Short adjournment.)
107MS GUESDON: Your Honour, I forgot about the ancillary orders and the disqualification.
108HIS HONOUR: The disqualifications? I had them written and I forgot them. I can't do that in his absence, can I?
109MS McFARLANE: He is aware of the loss of licence and the significant period of time.
110HIS HONOUR: No, it is mandatory, I mean to do that.
111MS GUESDON: Your Honour, I apologise, I didn't remember.
112HIS HONOUR: No, no need to apologise. Is there any objection to me doing this in his absence from anyone?
113
MS McFARLANE: No, Your Honour. We will be having a conference with
Mr Bates.
114HIS HONOUR: In relation to Charge 3, theft of a motor vehicle, any licence he holds is cancelled and he is disqualified from obtaining any licence for a year. In relation to Charge 5, five years, in relation to Charge 1, on the second indictment, five years, in relation to summary Charge 4, a year.
115So they are all concurrent, so it is five years. Do I need to backdate any of that or it is from today?
116MS GUESDON: No, because he never had a licence anyway.
117HIS HONOUR: So there was nothing to give a notice of. It is five years, so those are the orders. Thanks for reminding me of that. I did have it on the document. Thank you.
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