Director of Public Prosecutions v Borg

[2020] VCC 60

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02333

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON BORG

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2020
DATE OF SENTENCE:	5 February 2020
CASE MAY BE CITED AS:	DPP v Borg
MEDIUM NEUTRAL CITATION:	[2020] VCC 60

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Regan	Office of Public Prosecutions
For the Accused	Mr D. McGlone	Emma Turnbull Lawyers Pty Ltd

HIS HONOUR:

1Jason Borg, you have pleaded guilty to one charge of handling stolen goods, one charge of damaging an emergency service vehicle, the aggravated offence of intentionally exposing an emergency worker to risk by driving, two charges of doing so recklessly and one charge of possession of a drug of dependence.

2You have also pleaded guilty to an uplifted summary matter of commit indictable offence on bail.  As far as that matter is concerned I will simply direct that the sentence be one month to be served concurrently.  Those crimes carry maximum penalties of 15 years, five years, 20 years, 10 years and one year respectively.

3You are now 30 years of age.  You pleaded guilty at a reasonably early opportunity to a settled indictment and you must get the benefit of that.  You have endeavoured to express remorse and whilst I regard it as somewhat problematic I will certainly give you the benefit of the doubt in relation to it.

4Obviously you must get the utilitarian benefit of that plea of guilty and it goes very much in your favour.  You have now been in custody on these matters for 480 days.  On top of that there was a 90 day sentence served for other matters and I take that into account in a Renzella way.

5You do have a significant number of prior convictions.  You have prior convictions for driving, violence and dishonesty.  On my calculation you have been gaoled on a number of occasions previously and are certainly no stranger to the justice system.

6At the time this offending occurred you were on bail which means that the sentences are to be served cumulatively unless otherwise ordered and also the provisions of the Crimes Act in regard to exposing the worker to risk also bring in concepts of cumulation.

7As I have discussed with counsel the principles of totality here dictate that a very significant amount of these sentences must be served in my view in fairness to you concurrently.  I will express it in terms of cumulation because it is easier to calculate and to understand as long as everybody knows what I am doing.

8I then turn to a summary of the offending and I think any objective observer is going to take the view that it is serious offending indeed.  As I have indicated, you are currently 30 years of age.  The plea arises out of a series of incidents which occurred at Wyndham Vale in about a 30 minute period on 14 July 2018.

9You were driving a stolen Ford Trader truck which had a different style of number plates on it and that was pulling a large tandem trailer.  That is Charge 1, a rolled up charge of handling stolen goods.

10A police patrol unit was patrolling in McGrath's Road in Wyndham Vale and in that vehicle were constables, Reid and Dykstra.  They saw your Ford Trader flatbed truck towing the trailer southbound on McGrath's Road.  Both of them saw the trailer being towed had a hand painted registration on it.

11The police car followed your truck as it turned to travel west on Blackforest Road and they activated their police emergency lights to undertake an intercept.  You initially pulled over to the side of the road.  Constable Dykstra stopped the police vehicle behind your truck - not your truck, but the truck - but before they could exit their vehicle you deliberately reversed the truck and trailer, accelerating backwards.

12The rear of the trailer hit the police car causing moderate damage and then mounted the front of the police car.  That gives rise to Charge 2 of damaging an emergency services vehicle.  After the trailer mounted the bonnet it slid towards the windscreen causing the two police officers inside to fear that the trailer could breach the windscreen and intrude into the cabin.

13The force of the collision discharged the trailer from the truck.  That gives rise to Charge 3 of aggravated intentionally exposing an emergency worker to risk by driving.  That is a rolled up charge to cover the two occupants.

14You were driving a large truck with a large trailer and it is clear that in a situation the two police officers were not just put at risk for their safety they were clearly in my view put at risk of death.  You made a calculated decision to drive in this way and to place them in that position.  It is not disputed as I understand it that this falls to the higher end of this type of offending though there is no appellate authority on it.

15I have been shown a number of cases of sentences by this court for this offence and I take those into account in a generalised way as to what the general attitude towards it is.  It is clearly in my view serious offending indeed.

16You then accelerated away at high speed leaving the trailer behind.  The police officer then reversed her car to get out from under the trailer.  After doing that she positioned her car to watch you accelerate away noticing it switched off its headlights and that the rear had been damaged with the lights hanging down.

17The other police officer then called police communications and informed them that their car had been rammed.  Around about ten minutes later a sergeant, Peter West, and a senior constable, Alicia Westwood, patrolling in Greens Road, Wyndham Vale, in an unmarked white Commodore police car saw your truck approaching from the opposite direction at high speed. You drove past the unmarked police car resulting in Senior Sergeant West U-turning and then watching from some distance as your truck then turned into Lollypop Drive, Wyndham Vale.

18Meanwhile two other police members, that is Senior Constables Romanis and Jared Brookman, were in an unmarked police car in Lollypop Drive.  They were aware from police radio calls that your truck was somewhere in the street.  As they drove along Lollypop Drive they saw fresh tyre marks left by your truck leading into parkland.  They followed those tracks into Lollypop Creek Reserve.

19As they followed the tyre tracks onto a pedestrian footpath running alongside Cullen Drive they saw the truck being driven fast by you coming directly towards their police car.  You made no attempt to swerve out of the way of the police car and the driver, Senior Constable Brookman, had to take evasive action off the footpath and onto grassland to avoid a collision.  They then lost sight of the white truck.

20That is a charge of recklessly exposing an emergency worker as I have indicated previously and carries a maximum penalty of ten years.  Again because of the speed at which you were driving and the sheer size of the vehicle that you were driving had there not been sufficient or had the police not been able to sufficiently get out of the road I have got no doubt that you would be sentenced in another jurisdiction.

21You then left Lollypop Creek Reserve and entered Valley Mews.  Again that was a rolled up charge to cover the two occupants where Sergeant West and Senior Constable West had ended up in their car at the dead end street.  On reaching the dead end street Sergeant West turned to head back in the opposite direction.

22Upon completing that U-turn the two police officers saw you driving a truck in the opposite direction southbound on Valley Mews directly towards them and making no attempt to avoid an imminent collision.

23Senior Sergeant West quickly put the police vehicle into reverse and moved out of the path of the truck driven by you.  Again I make the same comments as I have made previously.  You then continued south over the kerb and back onto Lollypop Creek Reserve.

24You then attempted to cross the creek using a small started pedestrian bridge.  The truck became jammed and you abandoned the truck and fled on foot.  You were arrested a short time later on the roof of a nearby house having been seen there by the air police wing.

25Various forensic examinations took place which I do not need to detail, the principal of which was that your fingerprints were found as I understand it on the truck and also on one of the stolen number plates and that really other than your proximity to the scene was the evidence against you.

26When you were searched a small snap lock bag with amphetamines in it was found and again that fits in with how all this offending came about.  You were on two sets of bail at the time this offending occurred they being for persistent breach of a family violence notice and I do not need to go into the detail of that.  The simple fact of the matter is I will be giving the concurrent sentence for that as already indicated.

27One of the police officers made a victim impact statement and the others declined to do so and there is no doubt that this must have been an extraordinarily terrifying experience for all six of them.  The police officer that did give a victim impact statement said, 'As we were sitting at the end of Valley Mews I remember winding down my window to try and hear as the truck was coming our way.  The night air was still and fresh.  I was looking out my passenger side window when Peter, that is the sergeant, started driving again.

28'He suddenly stopped which made me look up.  All I could see was headlights flying towards us.  I knew instantly that it was the truck and it was driving fast.  Peter was driving and I felt he put the car in reverse but it did not move for second.  I looked down at the gear stick to see what he was doing because I thought the car was in neutral.

29'A split second later the car jumped back and the truck came flying past as where our car had been sitting.  I could not believe we were able to get out of the way in time.  That split second felt like a lifetime.  With the speed the truck was travelling if we had been hit I do not believe we would have walked away from the crash.  I did not have time to think about what had happened at the time as we were straight back into chasing the truck which we eventually caught.

30'It was not until the adrenaline had worn off that it really hit me about what had happened.  I have been to a lot of car accidents in my six years of policing and it really started to sink in what would have happened if Peter had not been able to move the car in time.

31'The car would have been totalled seeing as we were driving a sedan and the offender was driving a truck.  With a head on collision at such a high speed we would have been lucky to walk away with our lives.  At the time of the incident I had not even been married for a year and thought that my husband might have been told the bad news that both his wife and his father had been seriously injured or killed.

32'This breaks my heart and I am so lucky that it did not turn out that way.  Being the passenger in the car and having no control over what was unfolding in front of me resulted in some sleepless nights.  I have dreams where a car is out of control and not responding to my directions.

33'I have woken up in a cold sweat a few times reliving the incident in my dreams.  I have had flashbacks and I am apprehensive when driving in the area as I still see the lights coming towards me.  I get anxious when cars drive towards me at night as it brings back the memory of that night.

34'In July it was a year since it all happened and it plays on my mind what could have happened that night.  Before this incident I was a confident person who had never thought about or contemplated these scenarios playing out with me involved.  I never had flashbacks and drive in all sorts of conditions was never an issue before'.

35That victim impact statement eloquently describes why in recent times this sort of legislation has been enacted.  Police officers spend a large part of their lives keeping the community safe.  It is not the situation where they should be subjected to what can only be described as rubbish like this.

36It is a situation where a lot of this offending, and this is a comment from me, seems to be ice related.  Certainly attacks on emergency workers seem to be ice related.  It must go towards general deterrence to say that people who use ice know this is a likely consequence in terms of their behaviour they are going to have to suffer the consequences and I do accept that you were addicted and subject to ice intoxication at the time, but it in no way, shape or form helps you.

37It is the very reason, as I said, this legislation has been enacted.  The offending, as I have said, is very serious.  Of course the application of general and specific deterrence and clearly denunciation or appropriate punishment and an element of public protection and I think that is incorporated within the concept of general deterrence.

38A very significant gaol sentence is the only option here.  The legislation is such that only a gaol sentence - and I am not going to go into the detail of all that - only a gaol sentence can be imposed and even if that legislation did not say that I would not be giving any other form of disposition in any event because of the seriousness of it.

39I turn to matters personal to you.  Firstly you are undergoing at the present time any sentence I impose will be undergone in protection and I take that into account.  Your counsel in a very sensible plea if I may say so outlined your personal circumstances.

40Your sister gave evidence on your behalf and described the family background.  Essentially you were brought up in a family in the western suburbs.  Your father was self-employed and became unemployed at a period of time when you were around about Year 8.

41The family received no income in that time and it would appear that your mother developed a gambling addiction.  It was around about that time that you and your sister described started to go off the rails.  You began using party drugs and progressed to amphetamine.

42By the time you were around about 16 you were using amphetamine and ice.  To your credit you were able to complete a spray painting apprenticeship but you would then go on a bender.  For six or seven years you did - and I accept this from your sister - were a solid worker and in around about 2015 when a relationship began to fall apart or continued to fall apart you began to suffer from depression and your ice addiction became heavier.

43That relationship involved two children from a previous relationship for the mother and also one of your own.  I accept that you continue to have a good relationship with those children and that relationship is being promoted by the strong family support that despite all your behaviour over the years you still have.  That is a positive factor I would have thought in your prospects of rehabilitation and I take it into account.

44I have before me a report from Mr Ball which does not assist in many ways other than in a historical one.  As your counsel pointed out there is some gaps in that which cause me a degree of concern.  What I do take into account is that you have had a chaotic lifestyle over the years and that you are currently suffering and have for some time suffered from depression and you are on medication for that.

45That depression is not sufficient to give rise to the principles in Verdins though in many situations they are not needed. Obviously someone with depression is going to have a harder time in gaol than someone without it.

46You, as I have indicated, have said in a letter to the court that you apologise for your behaviour and as I indicated to counsel some judges are now not even accepting those letters as being totally self-serving. They seem to have become par for the course in recent times but I make no further comment on that.

47I do accept that you certainly as you sit there without having used now for a very significant period of time and knowing that you have the family support have a personal determination to turn your life around.  Whether you can do so or not is going to be a matter between you and I hope with the assistance of the Parole Board.

48I have taken Mr Ball's report into account and again your counsel very sensibly made some comments about that.  I also take into account as I have indicated the evidence from your sister which I accept and the letter that she tendered on your behalf.

49I accept that when you were much younger you attempted suicide. In around about 2015 as I understand it there was another genuine attempt at suicide.  You have clearly had emotional difficulties over an extended period of time and whilst I have indicated there is no Verdins involved here I do endeavour to take those - endeavour at least to take those matters into account.

50When you are ultimately released, and that is a matter for the Parole Board, not me, I am trying to have a situation where you will have a driver's licence available to you if you are able to work and you have indicated in the past that you are perfectly capable of doing that having completed an apprenticeship and you have accommodation to be offered to you by your family who are indicating that they will in fact shift away to get you away from the milieu in which you have been operating since you were in your mid-teens.

51The prospects of your rehabilitation should be reasonable.  At the age of 30 I certainly have not given up hope.  There is obviously some - because of your criminal history and the nature of this offending one obviously has serious concerns about all that.

52As I indicated it becomes a question of totality.  I also have to be sure that I do not - as best I can ensure that I do not impose a crushing sentence, but the fact of the matter is that this is serious offending indeed.  The community will not tolerate it.  Police should be able to do their jobs properly without having the fear of having their lives literally put at risk by this sort of conduct and accordingly the sentence I impose must be a condign one and one that accurately reflects the objective seriousness of this offending.

53Insofar as loss of licence is concerned that is mandatory.  What I am proposing to do on Charges 1, 3, 4 and 5 is give an aggregate loss of licence of four years.  I will direct that that loss of licence is to commence from the day of your arrest which I think was 14 July 2018 and I understand from discussion with counsel there is no difficulty with that.

54That is a significant loss of licence and it will be carried out whilst you are in custody but the potential of your rehabilitation depends on you at least having access to a licence.  That licence of course is cancelled and you are disqualified, it is not a suspension.

55Insofar as the charges are concerned I sentence you as follows.  Charge 1,
12 months.  Charge 2, three months.  Charge 3, six years.  Charge 4, two and a half years.  Charge 5, two and a half years.  Charge 6, three months.  I direct that the sentence imposed on Charge 2 of three months be served concurrently.  I direct that the sentence imposed on Charge 6 of three months be served concurrently.

56As I have already indicated on the summary matter one month to be served concurrently.  I direct that three months of the sentence imposed on Charge 1, six months of the sentence imposed on Charge 4 and six months of the sentence imposed on Charge 5 be served cumulatively upon each other and upon the sentence imposed on Charge 3.

57I do that obviously because each of those charges relates to separate and independent victims so there has to be some level of cumulation.  That gives a total effective sentence of seven years and three months.

58Having heard the submissions of your counsel and looking at your prior history and certainly from having heard from your sister and the family support that you have got it is my view that whilst it is a matter entirely for the Parole Board and not for me this is a situation where the community may best be served by you being given an early opportunity for parole than might otherwise be the case.

59You are expressing a desire to change.  Whether you do so or not is a matter for you.  That is a matter that will be determined by the Parole Board in the ultimate and not by me.  I make it clear I am simply giving them the opportunity of assessing that and taking it no further.  The head sentence in my view does reflect the seriousness of all this and it may be that we will need ultimately at least some sort of appellate direction as to it but that is the best I can do in all these circumstances.

60I direct that 481 days be reckoned as having been served under this sentence.  Insofar as s.6AAA is concerned I am obliged to give a sentence that I would have imposed but for your plea of guilty.  This is a situation where the artificiality of s.6AAA becomes apparent.  It is pretty clear to me that had you pleaded not guilty the Crown would have proceeded with three charges of intentionally endangering emergency workers and I think there would be a very strong chance you would have been convicted.

61So this s.6AAA is a little bit artificial, not a little bit, it is artificial.  However, in these circumstances I say but for your plea of guilty you would have been sentenced to be imprisoned for a period of ten years with a minimum term of seven.

62The non-parole period is four years.  It becomes a matter for him then and the appropriate people.  Nothing else?

63MR McGLONE:  Your Honour, just in terms of the cumulation that was cumulation of one, four and six months.  What charges were they on again, sorry?

64HIS HONOUR:  Charge 1, three months.  Charge 4, six months.  Charge 5, six months.

65MR McGLONE:  It is Charge 5?

66HIS HONOUR:  Yes.  Everything else is concurrent.

67MR McGLONE:  As Your Honour pleases.

68HIS HONOUR:  Are my maths correct, seven years and three months?  I am sure I am right.

69MR REGAN:  We will wait for the return, Your Honour, because the sentencing remarks came out quite clearly so I made my notes.

70HIS HONOUR:  No, I am sure I am right.  So that is the sentence that is imposed.  There is no other orders I have to make?  I have already made that one order for compensation.  That is it.

71MR REGAN:  Your Honour, we have got no further submissions in relation to other ancillary matters.

72HIS HONOUR:  Yes, thank you for that.  You can go now.  The barrister will see you downstairs. 

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