Director of Public Prosecutions v Bellingham

[2020] VCC 1078

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00498

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW BELLINGHAM

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2020
DATE OF SENTENCE:	22 July 2020
CASE MAY BE CITED AS:	DPP v BELLINGHAM
MEDIUM NEUTRAL CITATION:	[2020] VCC 1078

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:            Butler v The Queen [2019] VSCA 132; Sadiq v The Queen [2017]
  VSCA 64; DPP v Proctor [2019] VCC 130; DPP v Phelps [2017] VCC
  1364; DPP v Masset [2017] VCC 1504
Sentence:                 Total Effective Sentence 4 years 6 months, NPP of 3 years, $500 fine

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer	Office of Public Prosecutions
For the Accused	Ms L. Papadinas	Emma Turnbull Lawyers

HIS HONOUR:

1Matthew Bellingham, you have pleaded guilty to the following offences which carry the following maximum penalties:

Charge Nos.	Charge	Maximum Penalty
1	Theft	10 years
2	Conduct endangering life	10 years
3	Damaging an emergency service vehicle	5 years
4, 5	Resisting an emergency worker on duty	5 years
6	Aggravated offence of recklessly exposing an emergency service worker to risk by driving	10 years
7	Prohibited person carry firearm	10 years or 1200 penalty units
8, 9, 10	Handle stolen goods	15 years
Summary Charge 14	Failure to stop vehicle on police direction	6 months or 60 penalty units (first offence) 12 months or 120 penalty units (subsequent offences)
Summary Charge 15	Commit indictable offence whilst on bail	3 months or 30 penalty units
Summary Charge 16	Drive motor vehicle with more than prescribed concentration of drugs	12 penalty units (first offence) 60 penalty units (second offence) 120 penalty units (subsequent offences)
Summary Charge 18	Unlicensed driving	6 months or 60 penalty units

2Charges 3 and 6, which are the charges of damaging an emergency service vehicle and the charge of aggravated offence of exposing an emergency service worker to risk by driving, are Category 2 offences under the Sentencing Act.  This law states that I must impose a sentence of imprisonment (excluding a combination sentence with a CCO) for these offences, unless certain circumstances are raised on your behalf.  From the outset, Ms Papadinas conceded that there were no circumstances which could exclude you from the operation of this law.

3This law further provides that a sentence of imprisonment imposed on Charges 3 and 6 must be served cumulatively on other sentences, unless I order otherwise.

4You have admitted extensive prior convictions dating back to 2010.  Most importantly, on 16 February 2018, you were dealt with on appeal in this court on charges of dangerous driving whilst pursued by police, resist emergency worker on duty, make threat to kill, theft of motor car, possess controlled weapon without excuse, resist police officer, handle stolen goods and numerous other offences of dishonesty, drug possession, committing offences whilst on bail and aggravated burglary.  I will return to the relevance of these matters and your other prior convictions later in these sentencing remarks.

5The Crown tendered the prosecution opening for plea as Exhibit A.  A summary of your offending is as follows.

6On 1 August 2019, you stole a white Mitsubishi Outlander (Charge 1, Theft).  At the time of stealing the car, you were on bail for other alleged offences and you were also unlicensed to drive  (Summary Charge 15 - Commit indictable offence on bail and Summary Charge 18 - Unlicensed - driving).

7The car you stole was fitted with a GPS tracker.  Once the theft was discovered, the car was tracked and you were found to be in the Pakenham area.

8Police were alerted.  At 8.53 am, they located you in the stolen car on Main Street, where you were stopped in the right hand turning lane. 

9Police pulled up behind you, turned on the lights and sirens and directed you to stop.  You proceeded to reverse and then turn over the median strip, across a section of grass.  Against a red light, you entered the intersection of McGregor Road and Princes Highway and continued to drive north into The Avenue  (Summary Charge 14 - Fail to stop on police direction - first occasion).

10Police continued to track you using the GPS tracker on the car.  You were observed driving along Morrison Road, Pakenham Upper.  Police activated police lights and sirens and directed you to stop.  You drove away at a high speed towards Dore Road  (Summary Charge 14 - Fail to stop on police direction - second occasion).

11A decision was made not to pursue you further by car, and the police air wing was directed to observe you.  At 10.16 am, the aerial patrol observed you driving along Morrison Road in an erratic manner and at high speed.  You then turned onto the Princes Freeway travelling against the direction of traffic.  Travelling at 100 kilometres an hour, you swerved in and out of traffic, narrowly missing cars as you did so.  Of course, the traffic travelling towards you was also travelling at high speed, at least to the point where drivers became aware of your presence on the shoulder of the road, the median strip or in the lane in which they were travelling, and slowed to avoid a collision with you  (Charge 2 - Reckless conduct endangering life).

12The prosecution tendered both police aerial footage and a civilian person's dashcam footage of your driving.  You drove on the shoulder of the road, the median strip and on the laneway directly in the path of oncoming cars at high speed and, as I have noted, in an erratic manner.  Your driving was just plain frightening.  For those travelling towards you, it must have been a terrifying experience.  The footage shows that you put countless drivers at risk by driving on the wrong side of the road at high speed and in such an erratic and dangerous manner.  Even as you drove on the shoulder of the road, and on the median strip, you still had many near misses with oncoming traffic.

13Remarkably, it appears you also had a female passenger at the time of this driving.  It goes without saying then that in addition to the other road users, her life (as well as yours) was put in danger by your conduct.

14Your driving on this occasion, over a ten minute period, on the wrong side of the road, constitutes a very serious example of reckless conduct endangering life.

15You crossed over the median strip of the Princes Freeway into the inbound lanes, moved into the emergency lane and then exited the freeway into a BP Service Station.

16Police intercepted you at the service station and directed you and your female passenger to exit the car.  As the officers opened the doors to the car, the female passenger attempted to escape and was detained by police.

17At this point, you reversed the stolen car into an unmarked police car.  A police officer was inside the car at the time you reversed it.  You caused $1,800 worth of damage to the unmarked police car.  (Charge 3 - Damage an emergency vehicle)

18Police used capsicum spray and attempted to remove the key from the ignition, but you held onto the key.  Two police officers tried to arrest you, but you locked your arm with the steering wheel so you could not be removed from the car.  You pushed the officers away as they continued to attempt to arrest you.  (Charges 4 and 5 - Resist an emergency worker on duty)

19As the struggle continued, you continually attempted to drive the car.  A police officer tried to kick your legs away from the accelerator, however, you managed to move the car forward towards two police officers.  (Charge 6 - Aggravated reckless exposure of police officer to risk by driving)

20With the assistance of a further two off-duty police officers, you were eventually dragged from the stolen car and arrested.  Upon being searched, police located a .22 Rimfire calibre homemade pistol in the pocket of your pants (Charge 7 - Prohibited person possess firearm).  In the car, police also located stolen identification and bank cards (Charges 8, 9, and 10 - Handling stolen goods).

21You were interviewed at the Pakenham police station.  Whilst you mostly provided no comment answers, you denied ramming the police car.  At 11 am, an oral fluid test was conducted which was found to be positive for methylamphetamines  (Summary Charge 16 - Drive with over prescribed concentration of drugs).

22You have now been in custody since your arrest on 1 August 2019 and have now spent 356 days by way of pre-sentence detention.  I will reckon that period as already served.

23I turn now to consider the objective gravity of your offending and your moral culpability for your conduct.

24The analysis of the gravity of your offending needs little expansion beyond the description I have already provided of your driving.  That is:

·you drove at high speed in a 100 kilometre an hour zone - you were clocked at travelling at 100 kilometres an hour while cars travelled towards you in the same lane at the same speed;

·you were driving against the traffic and within and amongst a large volume of cars.  In other words, you put the lives of many road users at risk; and

·your driving was erratic.  The objective gravity of your offence was heightened by the fact that you admit that you were drug affected at the time of your driving.  I can only assume that your judgment was significantly compromised.

25Even knowing the outcome, it was difficult to watch, and hard not to feel fear and apprehension for the other road users, on seeing the footage of your driving.  In your own words, on watching the footage, you described it as 'nail biting'.

26To this point, I have concentrated upon the gravity of your driving, however, your other offending is equally as serious.

27You face four charges relating to your efforts to evade arrest:  Charge 3, being damage an emergency vehicle by driving; two charges of resist emergency worker on duty; and one charge of the aggravated offence of reckless exposure of a police officer to risk by driving.  These charges must be put in the context of the narrative I have related.

28In summary, as police tried to arrest you after your appalling and sustained driving, you attempted to evade arrest by the following conduct:

·you reversed your stolen car into a police vehicle while there was a police officer inside that car;

·police tried to use capsicum spray, but you held onto the steering wheel of the stolen car and fought off their efforts to pull you out of the car; and

·as police tried to remove you from the car, you managed to regain control of it and accelerated towards two officers.  Fortunately, both were able to get out of the way of the car and neither were harmed.  Realistically, this is no credit to you.  Rather, it appears to have been the efforts of the police to get out of your way that saved them from injury rather than any discretion exercised by you.

29At the time you were arrested, you were found in possession of a homemade .22 calibre pistol.  It was loaded and capable of firing.  Put bluntly, as a prohibited person, you were armed with a lethal weapon, at a time when you were committing serious criminal offences and evading the lawful efforts of police to arrest you, in order to prevent you from posing a further danger to the community.  The seriousness of that offending speaks for itself.

30On top of all of this, you are not licensed to drive and your offending was committed whilst on bail.  The fact that you were found in possession of stolen property just adds to the breadth of your criminality and your complete disregard for all aspects of the law.

31Before I consider your moral culpability for this offending, I propose to say something about your prior convictions for relevant offences.

32In August 2017, after committing a string of dishonesty offences, you stole a car from a driveway in Mulgrave.  At 3.40 am, on 1 September 2017, you were sighted by police driving the stolen car in Clyde North.  The police tried to intercept you, but you refused to stop and took off at speeds of approximately 120 kilometres an hour in a 60 kph zone.  Police followed you to Cranbourne where you mounted a curb whilst travelling at approximately 100 kilometres an hour in a 50 kph zone.  Due to the danger posed by your driving, police discontinued following you.

33At the same time as your sentencing on this offence, you were sentenced by the Dandenong Magistrates' Court on 16 November 2017, on charges including burglary, theft, handle stolen goods, obtain property by deception, committing an indictable offence whilst on bail and contravention of a condition of bail.

34On 22 June 2017, you faced the Dandenong Magistrates' Court on charges of resist emergency worker on duty, make threat to kill, threat to inflict serious injury, theft of motor car, six charges of theft, resist a police officer, several charges of commit an indictable offence whilst on bail, burglary, fail to answer bail, obtain property by deception (four charges), attempted theft, retention of stolen goods, aggravated burglary where there was a person present, attempt to commit an indictable offence, four counts of unlicensed driving and an attempt to obtain property by deception.  On that group of offending on 22 June, you were sentenced to an aggregate term of 17 months imprisonment, to be served by way of a drug treatment order.

35When you returned to the Dandenong Court on 16 November 2017, you faced the charges I have already outlined (that I,s the charges including the dangerous driving whilst pursued by police) and the breach of the drug treatment order; and you fell for resentence on these offences.  You were sentenced to serve the unexpired portion of the 17 month sentence, being 390 days, on the breach matters, and then to a term of 12 months imprisonment to run concurrently.

36You appealed against that sentence to this court and, on 16 February 2018, you were resentenced on the whole of the offending and the breach offences to a total of 1 year, 9 months and 25 days with a non-parole period of 10 months.

37Now beyond that, you have previous convictions for contravention of community corrections orders, for dishonesty, resisting police, assaults (including convictions for recklessly causing injury), driving offences, contravening family violence intervention orders, property damage and drug offences.

38In summary Mr Bellingham, you have been convicted of dozens and dozens of criminal offences, resulting in eight or nine principal court appearances, (excluding Children's Court matters and the appeal to this court).

39It follows from even a brief examination of your prior criminal history that your moral culpability for this offending is very high.  This is especially so, given your latest driving occurred on 1 August 2019, and occurred within two years of the earlier very serious similar conduct.

40Accordingly, your offending must attract the principle of deterrence.  Moreover, your reckless behaviour must attract the denunciation of the community.  The community is sick and tired of drug affected criminals putting innocent lives at risk when they get behind the wheel of a motor vehicle.  Your offending must also draw upon the principle of the protection of the community.

41The fact that you continue to offend in the same manner, showing a contempt for the safety of the public and for the efforts of police who lawfully tried to prevent you from your dangerous activities, means that you face severe punishment.

42I turn now to consider your personal circumstances.

43You are 25 years of age and you were born on 15 August 1994.

44You have 17 siblings, with your father having 13 children and your mother having four.  You had a difficult relationship with your mother in your younger years, however, you now share a close bond.  You did not know who your father was until you were 13, but you have since developed a relationship with him.  You described your father as a 'career criminal'.

45You had a disrupted childhood.  You were diagnosed with and received medication for ADHD as a child.  You attended 14 different primary schools in your younger years.  At age 12, you commenced using alcohol and at 13 started to take drugs, beginning with cannabis and moving to speed, ecstasy and ice.

46You received limited high school education before being detained at the Parkville YTC.  In regards to employment, you were employed for a brief period as a furniture removalist assistant.  After this, you undertook an apprenticeship as a roof tiler, completing the apprenticeship in two and a half years.  It was during your apprenticeship that you commenced smoking ice and, since this time, you have continued to use heroin, ice and GHB.  Despite these difficulties, I was told that there remains the prospect of your employment as a roof tiler with your previous employer, Felths Roofing.  After the plea, I received a letter dated 15 July 2020 from Matthew Feltham, who has indicated his willingness to re-employ you upon your release from prison.

47In addition to the instability in your childhood, I was told by Ms Papadinas that you also suffered emotional and physical abuse at the hands of your mother's partners over the years.  I was also told of an incident when you were 16 when you were stabbed by an adult male.  Again after the plea, I received a photograph and a newspaper report substantiating this attack.

48During the plea, I was told that your mother is suffering from stage four thyroid cancer.  The medical evidence, provided to me after the plea, indicates that your mother has a thyroid nodule which has a high likelihood of being cancerous, however, the first biopsy proved inconclusive.  Your mother has been sent for further testing.  I am prepared to accept that you would find her illness and the uncertainty as to her prognosis very distressing whilst you are in custody.  I do not accept that the evidence supports the earlier submission that your mother suffers from stage four cancer.

49As a result of your unstable childhood and the various traumas you faced, psychologist Ian McKinnon, in his report of 3 June 2020, diagnoses you with Complex PTSD.  Mr McKinnon states that your PTSD arose from:

…the emotional and physical abuse he was subjected to during his childhood (perpetrated by his mother’s partners), constant changes to his home address and environment, associated constant loss of friendship networks/peer relationships, exposure to parental substance abuse and criminality, injuries sustained during his adolescence in violent encounters with males and others, incarceration and institutionalisation in his early adolescence and so on. The chronic distress arising from these multiple life difficulties were later exacerbated by Mr Bellingham's involvement in the illicit substance abusing / criminal milieu, violence and other dramas inherent in that milieu, legal processing, imprisonment and so on.

50Mr McKinnon states that your:

PTSD and chronic polysubstance abuse as a means of self-medication made a significant contribution to his offending by degrading his ability to reason and make sound judgement, eroding his sense of morality and personal responsibility, making him more impulsive and prone to risky and reckless behaviour and fuelling self-destructive and destructive tendencies.

51Mr McKinnon reports that you are able to deal with the prison environment reasonably well, but he has concerns that you may become distressed and self-destructive, particularly if your mother's health deteriorates.

52In the course of her submissions before me, your counsel Ms Papadinas stated clearly that you do not seek to rely upon any of the principles enunciated in the Court of Appeal case of Verdins.  Rather, Ms Papadinas submitted that all of your significant life difficulties, your distress at your mother's condition, and your PTSD to the point of the offending, should be taken into the mix of the sentencing discretion, and I will do so.

53I was told that you have remained drug free since you have been in custody.  As you have now been on remand since your arrest on 1 August 2019, this is the longest continuous period that you have abstained from drug taking since you commenced taking drugs in your early teens.

54Mr McKinnon states in his report, and Ms Papadinas submitted, that you have gained insight into your offending since you have been in custody.  I stated earlier that you describe your own driving, captured in the aerial footage, as 'nail biting'.  I am prepared to find that you are beginning to develop some insight into your offending and that perhaps the sustained period without drugs has been of benefit to you.

55You are now thinking of life after you are released from prison and you hope to return to roof filing with Matthew Feltham.  It is also apparent that you wish to return home to help your mother and to help take care of your younger siblings.

56Ms Papadinas submitted that the following matters should be taken into account in mitigation of your sentence.

·your plea of guilty has utilitarian benefit.

·you have faced difficulties during the COVID-19 pandemic because of the general lockdown of Victorian prisons, which has led to the suspension of personal visits, the restriction on movement around the prisons, and a reduction in educational and vocational programs, service delivery and work opportunities.  Now that there is a concern that the pandemic has entered the prison system, the lockdowns have become even more restrictive and I accept that there is a stress and concern amongst prisoners of the effects if it does spread through such a close environment; and there is a natural concern also that prisoners have for their family members; and

·Ms Papadinas submitted that your relative youth, the presence of family support, the prospects for employment after your release and the fact that you are developing insight into your offending augment your prospects for rehabilitation.

57I accept that the first two of these factors; that is, the plea of guilty and the COVID situation, should play some role in mitigating the sentence I impose upon you.  However, I do not consider that you are so young and inexperienced such as to get the full benefit of mitigation that youth can provide.  This is because you have committed very similar offences in the past.  You had not long completed a sentence of imprisonment on charges very similar to those you face today.

58Ms Papadinas also submitted that you are remorseful.  In my view, as I said during the plea, watching some aerial footage and making an expression of remorse to a forensic psychologist is not sufficient evidence for me to conclude that you are in fact remorseful.  In any event, the test of lasting remorse will be when you are eventually released from prison and you move back into the community.  The test of your remorse will go hand in hand with your efforts at rehabilitation.  It will only be if you are able to remain drug free and you do not commit further crimes that the community will have a fair basis upon which to judge the genuineness of your remorse.

59At present, however, notwithstanding your expressions of good intention whilst in custody and in a drug free environment, I assess your prospects of rehabilitation as poor to guarded.

60The Crown made submissions on sentence which address the matters I have already raised.  Ms Warren referred to the judgment of Justice Priest in Butler v R, where His Honour said 'People tempted to drive recklessly and endanger the public in order to evade police must know that when caught, they will receive stern punishment'.

61In addition, Ms Warren provided a number of comparable cases:  Sadiq, and three sentencing remarks from Judges of this court; Proctor, Phelps and Masset.  The sentences for reckless conduct endangering life by driving in those cases ranged from four years and six months in Sadiq, through to three years in Proctor, 21 months in Masset and 18 months in Phelps.  Both the prosecution and defence agreed that your offending fell somewhere in the middle of this spread of cases.

62I want to make it clear that the law says that I must not be driven by, or overly influenced by, sentences in previous cases.  Rather, I must determine the proper sentence to impose in this case upon you.  That requires a consideration of the gravity of your offending, your moral culpability, a determination of the weight to be placed on the objective sentencing factors and with some, but a lesser, consideration of the matters raised in mitigation.

63Given the large number of offences you face today, I must also have regard to the principles of totality.  That is, I must impose a sentence which either moderates the sentences to be imposed on each and takes account of the overall total sentence to be imposed or moderates the periods of cumulation that I impose, such as to impose an overall sentence which is not crushing.

Charge Nos.	Charge	Max Pen	Sentence	Cumulation
1	Theft	10 years	9 mths	1 mth
2	Conduct endangering life	10 years	28 mths	Base
3	Damaging an emergency service vehicle	5 years	14 mths	4 mths
4	Resisting an emergency worker on duty	5 years	8 mths	3 mths
5	Resisting an emergency worker on duty	5 years	8 mths	2 mths
6	Aggravated offence of recklessly exposing an emergency service worker to risk by driving	10 years	18 mths	7 mths
7	Prohibited person carry firearm	10 years or 1200 penalty units	15 mths	6 mths
8	Handle stolen goods	15 years	5 mths
9	Handle stolen goods	15 years	5 mths
10	Handle stolen goods	15 years	5 mths
Summ Charge 14	Failure to stop vehicle on police direction	6 mths or 60 penalty units (first offence) 12 months or 120 penalty units (subsequent offences)	3 mths	1 mth
Summ Ch 15	Commit indictable offence whilst on bail	3 mths or 30 penalty units	2 mths	1 mth
Summ Ch 16	Drive motor vehicle with more than prescribed concentration of drugs	12 penalty units (first offence)	$500
Summ Ch 18	Unlicensed driving	6 mths or 60 penalty units	4 mths	1 mth
TES	4 years 6 mths
NPP	3 years

64After taking account all of those processes, I impose the following sentences on you.

65That leads to a total effective sentence of four years and six months.  I order a non-parole period of three years before you are eligible for parole. 

66Pre-sentence detention, being 356 days excluding today, is reckoned as already served. 

67Under s.6AAA, but for the pleas of guilty, I would have sentenced you to a period of six years with four years and three months to serve. 

68Mandatory license disqualification is required on Charges 1, 6 and Summary Charges 14 and 16.  There is a discretion to disqualify you from driving in respect of Charge 2, where the offence occurred as it did here, in connection with driving a motor vehicle.  On all of these charges, you are disqualified from obtaining a driver's license for a period of five years. 

69HIS HONOUR:  All right.  Mr Plummer, there was a compensation and forfeiture order sought by - - -

70MR PLUMMER:  Yes, Your Honour.

71HIS HONOUR:  - - - by Ms Warren.  So perhaps if I have them, I will sign them in chambers.  If I do not have them, we will notify your instructor and they can be forwarded through.

- - -