Director of Public Prosecutions v Borg

[2016] VCC 1882

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00415

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN BORG

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 December 2016
CASE MAY BE CITED AS:	DPP v Borg
MEDIUM NEUTRAL CITATION:	[2016] VCC 1882

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

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr D Trapnell
For the Offender	Ms M Carroll

HIS HONOUR: 

1Dylan Borg, you can remain seated for the time being.  You have pleaded guilty to an indictment charging you with seven offences, all of which were committed on the evening of 15 August 2015

2Charge 1 involves theft of a motor vehicle, Charges 2, 3 and 4 each involve reckless conduct placing persons in danger of serious injury.  Charge 5 involves an offence of robbery.  Charge 6 involves an offence of aggravated burglary of a dwelling with the occupant present and Charge 7 alleges theft of a motor vehicle belonging to that occupant of the dwelling.

3You have also pleaded guilty to related summary offences of unlicensed driving; summary charge 9, committing an indictable offence, namely aggravated burglary, the subject of Charge 6 whilst on bail; summary charge 15.  You have admitted your criminal record.  It contains several offences relevant to sentencing in this case.

4The offence of theft carries a maximum term of imprisonment of ten years.  The reckless conduct offences each carry a maximum term of imprisonment of five years.  The maximum sentence for robbery is 15 years and that for aggravated burglary, 25 years.  The maximum term of imprisonment for summary charge 9 is 3 months' imprisonment and for summary charge 15, it is 3 months' imprisonment.

5The facts are conveniently set out in a document headed Statement of Agreed Facts which is Exhibit A.  that document may be summarised as follows:  At approximately 10 am in 15 August 2015, an unknown person attended at 4 Balanda Court in Bundoora.  The premises is a private dwelling.  It was locked at about 9 am that day.  The unknown person gained entry to that dwelling by forcing a sliding door located at the rear of the house.  Keys to the owner's blue Mazda VT50 4-WD utility, registration ZFV 065, were stolen from the kitchen table.  The vehicle which was parked in a locked car park was then stolen from the premises.  At about 9.55 pm on

615 August 2015, you were seen by a police officer, driving the blue Mazda BT50 4-WD utility which had been stole from the address in Bundoora to which I have just referred along Moran Drive in Mill Park. 

7You were not licensed to drive a motor vehicle.  The registration plates had been removed from the vehicle.  You drove the vehicle into Sycamore Reserve car park.  Your conduct in the driving of that vehicle is the subject of Charge 1 of theft of a motor vehicle and summary charge 9 of unlicensed driving. 

8The police officer who had observed you knowing that a vehicle matching that description had been stolen earlier that day, followed the vehicle into the reserve car park in an effort to intercept the vehicle.  The car park ended in a dead end.  You, on seeing the police vehicle, performed a U-turn and accelerated heavily towards the police vehicle.  The officer was forced to take evasive action and swerve out of the way in order to prevent a collision between your vehicle and his.  The officer then attempted to intercept your vehicle by activating his police vehicle lights and sirens.  You intentionally ignored the request to pull over, accelerated away at a fast rate of speed and drove erratically through the streets of Mill Park.

9The vehicle was not pursued further due to the danger you were causing to the public.  It was last sighted by the officer on Hawkes Drive in Mill Park.  You continued to drive the Mazda utility erratically and at a high speed. You were sighted travelling north on Plenty Road, Mernda.  Near the intersection of Bridge Inn Road, police had set up a random breath testing station.  As you approached the site, you drove directly at Senior Constable Beasley, the victim named in Charge 3 who was performing traffic duties at the site.  Owing to the manner of your driving, Senior Constable Beasley was forced to jump out of the way of the vehicle that you were driving to avoid being struck. 

10The police air wing was utilised and kept the Mazda utility under observation as you drove around the Mernda, Doreen, Mill Park and Bundoora areas.  The air wing members followed the vehicle at a safe distance and observed that you were driving in an erratic manner, disobeying traffic control signals and speed limits, even though you were not being pursued by police units on the ground at that time. 

11Whilst driving east on McDonalds Road, South Morang, you approached a marked police vehicle with its light activated which was stationary in the slip lane to your left.  You deliberately changed lanes and drove directly at the police vehicle which contained two police officers.  You swerved away at the last minute narrowly avoiding a collision.  You continued to drive erratically and at high speeds.  A short time later, you were observed driving north on Plenty Road, Bundoora on the dedicated tram tracks before veering onto the wrong side of the road and continuing north along Plenty Road at a fast rate of speed.  You were driving directly towards oncoming traffic.  By reason of your erratic and dangerous driving, other drivers were forced to take evasive action in order to avoid a collision by swerving out of your vehicle's path. 

12Owing to your persistent dangerous driving, police were forced to take action to stop the vehicle you were driving.  In Grimshaw Street, Bundoora, police officers released vehicle stop sticks which were deployed successfully with the result that the front and rear driver's side tyres of the Mazda utility were deflated.  This did not stop you.  You continued to drive the stolen vehicle on the two flat tyres.  You drove the stolen Mazda to the rear of the University Hill shopping complex which is located on Plenty Road, Bundoora.  There, you were met by an unknown person in a white Holden sedan, registration number TRENT 4.  A police vehicle pulled up behind the Mazda just as you jumped into the rear passenger seat of the Holden sedan, and fled the scene.  Latent fingerprints belonging to you were later identified on the stolen Mazda utility. 

13Map 1 was tendered during the plea hearing showing the route taken by the blue Mazda that was stolen; registration ZFB 065 whilst being driven by you at that location.  That driving is the subject of Charges 2 and 3. 

14The police air wing aircraft was re-tasked to follow the Holden sedan and maintained observations of the vehicle as it was driven erratically on the Western Ring Road, Tullamarine Freeway and then out towards the south eastern suburbs along the Monash Freeway.  Near the intersection of Stud Road and the Monash Freeway, police officers were able to release vehicle stop sticks which were deployed successfully and deflated a rear tyre of the vehicle.  Shortly afterwards, the Holden sedan stopped in the middle of the freeway, forcing the vehicle behind it to slow down.  That vehicle did not stop but continued manoeuvring around the vehicle that you were in, the Holden sedan. 

15The unknown co-offender then continued to drive the vehicle with the flat tyre and attempted to stop a white Jeep Cherokee travelling in the far left lane of the freeway by deliberating colliding into the side of the vehicle on two occasions.  This action caused the Jeep to spin across four lanes of freeway before coming to a stop in the centre grass median strip. 

16Police observing the actions of the Holden sedan immediately provided assistance to the occupants of the Jeep.  The Holden sedan did not stop and continued travelling in an erratic fashion along the freeway.  The driver of the Jeep was not injured in the collision.

17You and the unknown driver of the Holden sedan continued travelling along the freeway which you left at the Power Road exit in Endeavour Hills.  Near the intersection of Power Road and Churchill Park Drive, the driver of the Holden sedan drove on the wrong side of a roundabout and headed directly to an oncoming vehicle, a Mitsubishi sedan, registration number PWB 835, driven by Benjamin Ruhl.  Mr Ruhl was forced to stop his vehicle.  The unknown driver of the Holden sedan positioned the Holden sedan in such a way as to block Mr Ruhl's vehicle from proceeding through the roundabout.  You and the unknown driver got out of the Holden sedan and approached Mr Ruhl's vehicle.  One of you, in the presence of the other, opened Mr Ruhl's car door, grabbed him and physically removed him from his vehicle before stealing it. 

18You and the unknown driver fled the scene in

19Mr Ruhl's vehicle leaving him standing on the roadway.  Mr Ruhl was not injured.  Map 2 was tendered showing the route taken by the Holden Commodore sedan whilst being driven by the unknown co-offender.  Your offending conduct as a participant in a joint criminal enterprise and with the unknown driver in that driving is the subject of Charge 4.  The robbery of Mr Ruhl is the subject of Charge 5. 

20Mr Ruhl's vehicle was then driven to Zircon Close, Narre Warren, where it was dumped.  You and the unknown co-offender then parted company and went your separate ways.  Map 3 was tendered showing the route taken by

21Mr Ruhl's Mitsubishi sedan. 

22Shortly thereafter, at about 11.55 pm, you entered the rear yard of 3 Zircon Close, Narre Warren via a side gate.  You used a chair to smash through a glass sliding door and entered the premises.  While searching the premises, you were confronted by the female occupant,

23Ms Belinda White.  You demanded that she hand over the keys to her motor vehicle.  Ms White, fearing for her and her children's' safety, handed over her keys to a silver Ford sedan, registration YZQ 580, which was parked in the driveway of the premises.  You left the house, got in the driver's seat of Ms White's vehicle and started to drive away.  That conduct is the subject of Charges 6, aggravated burglary, and 7, theft of motor vehicle.  As you attempted to drive away in Ms White's car, police

24Canine unit vehicles entered the court.  You attempted to drive around the police vehicles by driving across the front yard of Ms White's property and across a neighbouring property.  The police canine unit officers attempted to box you in but you did not stop the vehicle you had stolen.  Your continued driving resulted in a collision between the Ford sedan and police vehicles.  No one was injured in the collision but the conduct forms part of the subject matter of rolled up Charge 2 on the indictment.

25Following a short struggle with police officers, you were finally arrested and taken into custody.  You suffered cuts and bruising and sustained a dog bite during your arrest.  You were transported to the Dandenong Hospital under police guard where you were treated by hospital staff.  Later that morning, you were released by hospital staff and transported to Mill Park police station for questioning.  During the record of interview, you exercised your rights and made "no comment" responses to the allegations as they were put to you. 

26At the time these offences were committed, you were on bail having entered into an undertaking on 7 May 2015; summary charge 15.  The overall incident lasted approximately two hours commencing at 9.55 pm in Mill Park and concluding at midnight in Narre Warren.  During the incident, you travelled approximately 127 kilometres.  At various stages, the incident involved 24 police units, two canine units and two police helicopters.  The majority of police units contained two police members so in the order of 50 police officers were involved at various stages during the incident.  The overall cost to the community in police resources used as a consequence of the actions of you and your co-offender on this night is estimated to be approximately $17,500.  '

27Both Mr Ruhl and Ms White provided victim impact statements and I take those into account.  It is self-evident that your conduct in this spree was utterly deplorable.  You demonstrated a gross lack of respect for the property rights of Mr Ruhl and Ms White.  You showed no concern for the psychological effects of your actions upon them.  You were apparently intent on avoiding the consequences of the offence of theft of the motor vehicle, the subject of Charge 1, at all costs and without the slightest regard for the safety of anyone who crossed your path.

28Once you set about evading police, the criminality of your conduct escalated from bad to worse.  This was intentionally high risk behaviour over a significant period of time and distance.  It is almost miraculous that the consequences of your actions that evening were not much more serious than they were.  I regard each of the offences underpinning Charges 2 to 5 inclusive on the indictment as very serious examples of each of those offences. 

29Charge 5 involved violent carjacking in dangerous and frightening circumstances.  Indeed the conduct underpinning Charges 2, 3 and 5 are close to, if not, in the worst category.  Your conduct was calculated to instil considerable fear into every member of the public and every police officer placed in harm's way.  You had more than adequate opportunity to consider, reconsider and reconsider again the serious and dangerous nature of your conduct.  You could have desisted at any time yet  you persisted defiantly until you were finally subdued by police.  Any right thinking observer of the totality of your conduct would regard it as requiring the utmost denunciation and very severe punishment. 

30The aggravated burglary, the subject of Charge 6 and in the circumstances the theft, the subject of Charge 7, are serious examples of those offences.  Indeed, that conduct was in its intention and execution, a form of carjacking.

31Turning to matters personal to you, your counsel provided me with a brief outline of submissions, Exhibit 1, summarising your family and background history, praying in aid, your youth and your plea of guilty and referring to your apparently serious methyl amphetamine habit as the context to this offending conduct.  Your counsel accepted that an immediate custodial sentence was inevitable but somewhat tentatively submitted that it was open to me to impose a term of imprisonment combined with a "lengthy" community corrections order. 

32Your counsel also provided me with letters of reference which show a far better side to your character than that you exhibited on 15 August last year and indeed that reflected in your past criminal history.  You are apparently more than capable of gainful employment and you have expressed remorse for your conduct. 

33It is apparent that you have had a difficult upbringing in a dysfunctional family although you still have family support from members of your immediate and extended family.  You have apparently had a methyl amphetamine habit since you were 19 years of age.  It is probable that you were emboldened by that drug at the time of your offending.  It is not suggested that the fact of your use of methyl amphetamine is a mitigatory fact.  It is purely contextual and perhaps to some degree, explanatory of your conduct. 

34It is to your credit that since you have been in prison on remand for these offences, you have apparently applied yourself to rehabilitation.  In particular, you have engaged in rehabilitative programs offered by Corrections Victoria and have participated in and completed a semi intensive drug and alcohol program provided by Carniche Pty Ltd at the Marngoneet Correctional Centre.  Urine testing reports tendered on your behalf support the contention that you were drug free at least in the lead up to that program which took place in January and February of 2016. 

35I accept that during your time on remand, you have made serious attempts to address your substance abuse issues and that you have expressed a genuine wish to turn your life around.  Your prospects of rehabilitation will improve in proportion to the degree to which you are able to sustain your efforts to do that whilst serving the sentence that I shall be imposing upon you. 

36My attention was drawn to a period you have served in part on parole and to a previous community correction order imposed upon you.  It was conceded that you had not availed yourself of past opportunities to rehabilitate yourself although there is, in my view, some hope for the long term future at present, having regard to the relatively long standing nature of your methyl amphetamine use.  Those prospects cannot be regarded yet as good. 

37Although your pleas of guilty were offered late, there is in my view, considerable utilitarian value in your pleas of guilty.  The cost of a trial would have been significant and witnesses would have been required to relive disturbing experiences.  I note there was no cross-examination of any civilian witness at the committal hearing although there was an endeavour to test the identification evidence relied upon by the prosecution.  I am told that the pleas to this indictment were made after protracted post-committal negotiations between the defence and the prosecution.  I accept that pleas of guilty reflect a willingness to accept criminal responsibility, albeit post-committal.  I also accept the pleas support to some extent your expressions of remorse, although again, your remorse seems to have arisen later rather than sooner.  I do not accord any significant weight to letters of apology you have addressed to two of your victims which I was invited to consider on your plea, as being indicative of remorse.  I find the remorse in other material.

38It was urged upon me that I should take into account your youth.  You were 23 years of age at the time of the offending.  You are 24 years of age now.  It is a well-established principle that it is in the public interest that the courts promote the prospects of rehabilitation of a youthful offender to the extent that it is appropriate to the individual case.  I do take your youth into account in determining the appropriate sentence although the serious nature of these offences demands a substantial custodial sentence.

39I was urged to avoid a crushing sentence.  Clearly it will be necessary to apply the totality principle with some care in determining the appropriate total effective sentence.  Ultimately your counsel urged me to reflect the need to promote your rehabilitation in a relatively shorter non-parole period. 

40Detailed and helpful submissions were made by the prosecution as to the need for the court to consider community concerns regarding offending of this kind reflected in Charges 2 to 5 in particular, as well as Charges 6 and 7.  It was submitted that the conduct reflected in Charges 2, the rolled up charge and 3, were particularly serious and that crimes in the nature of carjacking reflect in Charge 5 and Charge 6 are prevalent in Victoria and that they have recently excited heightened community concerns.

41My attention was drawn to previous sentencing orders both at first instance and on appeal including some cases decided in other states.  Although of some help, they did not in my view, assist greatly in identifying a current sentencing practice in Victoria for offending of this nature.  I refer in that last sentence to the cases decided in other states. 

42It was conceded on your behalf by your counsel that there was a proper basis for my concluding that there are current community concerns arising from criminal conduct in the nature of carjacking.  There is a high degree of need for denunciation of this offending conduct and a need for just punishment reflected in some measure of cumulation between sentences for individual offences.  Your criminal record requires me to pay proper regard to the need to deter you from further offending.  Most importantly offending of this kind placing innocent road users in serious peril and forcing police officers to place themselves in harm's way to protect the public, requires considerable weight to be given to deterring others from following your example.

43Those factors are to be balanced against the need to promote your rehabilitation, particularly having regard to your relatively young age and the need to appropriately apply the totality principle.  I accede to your counsel's submission that the need to facilitate your rehabilitation can be reflected in an appropriately calibrated minimum non-parole period.  Having particular regard to the serious nature of the offending and the maximum terms of imprisonment for those offences, I reject the submission that the combination of a sentence of imprisonment coupled with a community corrections order is an appropriate disposition.  I am now ready to sentence you.  Would you please stand. 

44Dylan Borg, on each of the charges to which you have pleaded guilty, are you are convicted.  I impose the following terms of imprisonment:

45On Charge 1, six months' imprisonment.

46On Charge 2, three years' imprisonment.

47On Charge 3, two years, eight months' imprisonment.

48On Charge 4, two years, three months' imprisonment.

49On Charge 5, four years, six months' imprisonment.

50On Charge 6, four years, three months' imprisonment.

51On Charge 7, seven months' imprisonment.

52On summary charge 9, one month imprisonment; and

53On summary charge 15, one month imprisonment.

54I make the following orders for cumulation of sentences.  The sentence on Charge 5 on the indictment of four years and six months is the base.  One month of the sentence on Charge 1, 12 months of the sentence on Charge 2, nine months of the sentence on Charge 3, six months of the sentence on Charge 4 and 12 months of the sentence on Charge 6 are to be served cumulatively upon one another and upon the sentence imposed on Charge 5.

55That gives rise to a total effective sentence of seven years and ten months.  I order that you served a period of five years imprisonment before you become eligible for parole.  I declare 477 days pre-sentence detention as time to be reckoned as served on the sentence I have imposed and deducted  administratively form the sentence you will actually have to serve.  I order those facts be noted in the records of the court.

56But for your pleas of guilty, I would have imposed a total effective sentence of nine years and ten months imprisonment with a non-parole period of six years and nine months.  In respect of each of Charges 1, 2, 3, 4, 5 and 7 on the indictment, I cancel any licence to drive a motor vehicle and disqualify you from driving for a period of four years.  Those periods will all commence on the date of sentence.  I make the order for the provision of a forensic sample in accordance with the draft previously supplied by the prosecution.  You will be required by an authorised officer, while serving your sentence, to provide a sample of your DNA by a scraping from the inside of your mouth.  If you comply with that requirement that is the end of the matter.  If you fail or refuse to provide the sample in that way, the officer will be authorised to take a sample of your blood and may use reasonable force to do so. 

57Are there any other orders I need to ‑ ‑ ‑

58MR TRAPNELL:  No, Your Honour.

59HIS HONOUR:  I am sure you have given me the drafts, I see them here.  I'll sign them now. 

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