Director of Public Prosecutions v Briffa
[2024] VCC 778
•30 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02155
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEX BRIFFA |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 May 2024 | |
DATE OF SENTENCE: | 30 May 2024 | |
CASE MAY BE CITED AS: | DPP v Briffa | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 778 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: 25 charges – spree of offending – 14 incidents – category 2 offences - recklessly exposing an emergency worker to risk – seven related summary charges – early plea of guilty – deprived background – offending in context of extensive drug addiction- young offender- Verdins
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Verdins, Buckley and Vo (2007) 16 VR 269; DPP v O’Neil (2015) VR 395; Pears v The Queen [2021] VSCA 264; Fariah v The Queen [2021] VSCA 213; Farmer v R [2020] VSCA 140
Sentence: Total effective sentence of 4 years 11 months imprisonment; non-parole period of 3 years 6 months; 604 days pre-sentence detention reckoned as time already served under this sentence – licence cancellation and disqualification for 4 years from today’s date.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C. Brydon | Office of Public Prosecutions |
| For the Accused | Mr S. Ranjit | Papa Hughes Lawyers |
HER HONOUR:
Introduction
1Alex Briffa, you have pleaded guilty to an indictment containing:
·
seven charges of burglary, each of which carries a maximum penalty of
10 years' imprisonment;
· ten charges of theft, each of which carries a maximum penalty of 10 years' imprisonment;
· one charge of conduct endangering persons, which carries a maximum penalty of five years' imprisonment;
·
three charges of aggravated offence of recklessly exposing an emergency worker to risk by driving, each of which carries a maximum penalty of
10 years' imprisonment;
· one charge of damaging an emergency service vehicle, which carries a maximum penalty of five years' imprisonment;
·
one charge of handling stolen goods, which carries a maximum penalty of
15 years' imprisonment; and
· two charges of possession of a drug of dependence, each of which carries a maximum penalty of five years' imprisonment.
2At the hearing of the plea in mitigation of penalty, you provided your consent to my dealing with seven related Summary Charges, and you pleaded guilty to each of those charges, namely:
·
three charges of failure to stop motor vehicle when directed, each of which carries in your case a maximum penalty of 12 months' imprisonment or
120 penalty units;
· one charge of unlicensed driving, which carries a maximum penalty of six months' imprisonment;
· one charge of drive in a manner dangerous, which carries a maximum penalty of two years' imprisonment of 240 penalty units;
· one charge of drive while exceeding prescribed concentration of drug of dependence, which carries a maximum penalty of 12 penalty units; and
· one charge of deal with property suspected of being proceeds of crime, which carries a maximum penalty of two years' imprisonment.
3The prosecution has relied on a very detailed Summary of Prosecution Opening for Plea hearing, dated 20 March 2024, which was exhibited at your plea (Exhibit A). The prosecution also relied on:
· outline of prosecution submissions on sentence dated 1 April 2023 (Exhibit B);
· DPP v Alex Briffa – County Court decision of His Honour Judge Coish dated 15 November 2019 (Exhibit C);
· Victim Impact Statement of Detective Senior Constable Craig Buchan dated 3 May 2024 (Exhibit D); and
· supplementary Prosecution submissions dated 5 May 2024 (Exhibit E).
4In addition to the matters developed in oral argument, your counsel relied on:
(a) plea submissions dated 2 May 2024 (Exhibit 1);
(b) neuropsychological report from Ms Anderson dated 1 May 2024 (Exhibit 2);
(c) psychological report from Ms Mynard dated 1 March 2024 (Exhibit 3);
(d) letter of clinical opinion of Ms Anderson (Exhibit 4); and
(e) letter from you to the Court (Exhibit 5).
5I have taken into account all exhibited documents, as well as considering carefully the matters developed in oral argument.
Circumstances of your offending
6The Summary of Prosecution Opening for Plea is lengthy and extensive, and accordingly I will simply summarise some of the salient facts referable to each of your offences rather than reciting that summary in full.
7At the time of your offending, you were 29 years of age, you were on parole, you were partnered with a woman named Anastasia Ozimek, and you did not hold a valid driver's licence. Your offending occurred in a spree primarily during the period between 18 January and 20 January 2022, during a short period in which both of you were addicted to drugs and were on a tear of consuming those drugs to excess.
8On 13 January 2022, you were driving a Ford Falcon sedan, which was a vehicle registered to your partner, who was in the vehicle. Police attempted to intercept you to conduct a routine preliminary breath test, and you initially slowed down before accelerating and bypassing the police officer and failing to stop as directed. You travelled at speeds up to 150 kilometres per hour. This is the first Summary Offence of failure to stop as directed.
9Four days later, on 17 January 2022, Thang Tran, left a Jaguar sedan parked outside his business on Williamson Road, Maribyrnong. He left the keys inside the car. Your spree of indictable offending on this Indictment then commenced. At approximately 4.05 am on 18 January 2022, you were driving a white utility in that area, with your then partner in the passenger seat, and you lined the car up with the front roller door of the business, then reversed the utility into the roller door, ramming it in such a way that the roller door broke. The two of you then exited the utility and entered the auto repair business through the broken roller door. You located and stole the Jaguar belonging to Mr Tran and drove it away. Mr Tran later attended the business and discovered the damage to the roller door and that his car had been stolen and called Triple 0. This is the offending referable to your Charge 1 of burglary and Charge 2 of theft of motor vehicle.
10Later that same morning, that is, at about 10.30 am on 18 January, your partner drove a white Mazda utility into the Car Nation Auto yard located in Ballarat Road, Maidstone, with you in the front passenger seat. You found a Toyota Prado SUV, parked and unoccupied, with keys inside the vehicle, and you entered the Prado, started the car and drove it out of the car yard. You drove off erratically and at excessive speeds. This is the offending referable to your Charge 3, of theft of motor vehicle.
11Between 9.10 pm on 18 January and 7.15 am on 19 January 2022, the two of you forced entry into SSH Hair Salon in Balcombe Road, Beaumaris, by jemmying open the front metal framed glass door. Once inside the store, the two of you ransacked the premises, and stole various items associated with the business of hair care totalling approximately $17,384 in value. This is the offending referable to your Charge 4 of burglary, and Charge 5 of theft. We are now into the second day of your spree, and as yet the focus has been upon this modus operandi of gaining entry, usually by force, primarily of commercial premises, and stealing items of high value, apparently for the purpose of fuelling your shared habit.
12At approximately 4.45 am on 19 January 2022, the two of you attended the Designer Eyes store in Morgan Court, Glenroy, in your stolen Toyota Prado. You were driving. At 4.51 am, you rammed the vehicle into the front door of the store, which caused the door to fling off its hinges and the side panels to shatter. CCTV footage captured this and the other similar incidents. You exited the vehicle carrying a container and approached the Tom Ford display shelf within the store and swept 23 pairs of sunglasses and glasses valued at approximately $4,211 into the container, and that you then left the scene. Multiple witnesses observed your behaviour and contacted Triple 0. You caused approximately $30,000 damage to the premises as a result of the burglary.
13At approximately 6.52 am on 19 January 2022, the two of you attended the Rossi Motors store in Clarke Street, Northcote in the stolen Toyota Prado, which you drove. You parked the Prado, exited the car, and began looking in the windows of various cars parked at the business, before you walked the external block of the premises, and cut the lock to the rear of the property. You then walked to the front door and smashed the glass panels with a screwdriver and jemmy bar, before you climbed into the premises via the broken glass panel. You then drove the car away. The owner of the business arrived at work later that morning and observed the broken windows and reported the matter to police. This is the offending referable to your Charge 8 of burglary.
14At approximately 11.35 am on 19 January 2022, the two of you attended the Sportsmart store in Bell Street, Preston in the stolen Toyota Prado, and your behaviour was sufficiently concerning that the manager called Triple 0 for police assistance. While police were on their way, you selected a pair of Asics shoes valued at $240 and tried them on, and then left without paying for those shoes. This is the offending referable to your Charge 9, of theft.
15Police attended the store just as you were leaving, and upon seeing the police, you got into the stolen Prado and drove away from the store, almost colliding with a pedestrian. You drove the Prado whilst pursued by police around the Bell Street area at speed, wherein police observed you cross the median divider twice and drive on the wrong side of the road towards oncoming traffic. Collectively, this is the behaviour referable to your Charge 10, of reckless conduct endangering persons; and also the behaviour referable to your related Summary Offence of failure to stop. Here, I will pause and note that I view your Charge 10 as being of a different character to the offending referable to Charges 1-9 which I have summarised carefully. This offence instead involved the use of a car to avoid police, in a very dangerous manner, utterly indifferent to the safety of others whom you might expect would be surrounding you in this busy area at that time of day.
16At approximately 5.30 pm that evening, the two of you attended the AutoZone car yard in Sydney Road, Fawkner, and you returned to that location at approximately 9.48 pm that evening in the stolen Toyota Prado driven by you. You reversed the vehicle into the front gate, ramming it open. We have returned to the first modus operandi of forced entry, and opportunistic theft of high value items. Once inside the car yard, your co-accused exited the Prado, entered a silver Honda, and the two of you left the car yard each driving away in your own stolen cars. About eight minutes later, the two of you returned to the car yard, now both seated inside the stolen Honda; you exited the Honda and entered a white Toyota van, and you again left the car yard each driving in your own stolen cars. The offending was captured in part on CCTV footage. Your involvement in the theft of the cars is the behaviour referable to your Charge 11, of theft of motor vehicle (a rolled-up charge).
17Moving to the third and final day of your spree of offending, at approximately 1.55 am on 20 January, the two of you arrived in the stolen Toyota at the Standard Computers store in Millers Road, Altona North. You were captured on CCTV footage driving the van. You reversed the van into the front glass doors of the premises, breaking the doors and forcing entry, and the two of you then exited the van and entered the store. You stole assorted computer equipment valued at approximately $9,031, which you took back to the van, and you then fled the store in the stolen Toyota. This is the offending referable to your Charges 12, burglary, and 13, theft. Your conduct was captured on CCTV footage, as well as being observed by witnesses. The manager of the store received a security alert at 2.05 am, and then attended the store to assess the damage, and he contacted police. The cost of repairing the damage to the door caused by you was approximately $4,350.
18Only a couple of hours later, at approximately 4.20 am on 20 January, the two of you attended R & R Smash Repairs in Lynch Road, Fawkner in the stolen Honda, which you used to ram the front roller door of the premises in order to force entry. Once inside, the two of you entered the office area, and located a safe key. You then used this key to open a safe within the office, which contained various car keys, and you stole two sets of keys valued at $400. This is the offending referable to your Charge 14, burglary and Charge 15, theft. Police were contacted by the owner of the premises later that morning.
19About 20 minutes later, at 4.45 am on 20 January, Mr Mohammed Moizuddin arrived for his shift at My Pie & Coffee Drive Thru store located in Sydney Road, Campbellfield. He began unloading items from his car to the store, and he left his car unlocked during this process. The two of you were sitting in the stolen Honda in the drive through lane of that store, and were captured on CCTV footage in that location, with you in the driver's seat. Your co-accused approached the service window and spoke to your victim, asking if the store was open, and she was told to return approximately 15 minutes later at 5.00 am. She came back and ordered some drinks.
20While she did this, you exited the stolen Honda and approached the victim's vehicle, entered it and stole his wallet, dash camera, cigarettes and sunglasses. You took the stolen items back to the Honda and the two of you drove away. Your behaviour was captured on CCTV footage. The victim then contacted the police. This is the offending referable to your Charge 16, of theft.
21Approximately three quarters of an hour later, at 5.26 am on 20 January, the two of you attended Europcar & Store Local, that is, businesses located at an address in Sydney Road, Campbellfield. Your arrival in the stolen Honda is captured on CCTV footage.
22You exited the driver's seat, and approached the front door of Europcar and kicked that door in an attempt to gain entry, which left an impression of a shoe print on the front door and frame. You then jemmied the front door open using implements that you had with you and forced entry into the premises. You entered the store and stole a bag of tools and equipment from the office area, before returning to the stolen Honda and driving away. This is the offending referable to your Charge 17, burglary, and Charge 18, theft. Mercifully, this brings to an end this prolific and extensive spree of property offending. Unfortunately, you return to your other pattern of behaviour, being dangerous driving, where you drive as an absolute menace.
23Approximately half an hour after your theft just prior to 6 am on 20 January, you drove the stolen Honda along Anderson Road, Fawkner. CCTV footage shows you driving the Honda onto the wrong side of the road against the flow of traffic and mount the kerb before coming to a stop. Witnesses saw you slumped over the steering wheel, as if asleep, and approached you and opened the car door to check on your welfare. When the car door was opened, you accelerated the car at speed from the kerb and into oncoming traffic on the wrong side of the road, before returning to the correct lane and continuing to drive away. Your behaviour was captured on CCTV footage. This is the offending referable to your related Summary Offence, of drive in a manner dangerous. At approximately 10.45 am that morning, the two of you were in the stolen Honda in the car park area of Boeing Reserve, Strathmore Heights, with you in the driver's seat. The car was stationary in the middle of the road, which caused a witness who was approaching from behind in her own car beep her horn and drive around the Honda. As she drove around, you waved at her. Fifteen minutes later, she saw you driving the stolen Honda at a slow speed along Mascoma Street, with a line of traffic building up behind the car. She inferred that you may have been drunk from the way that you were driving the car, and she contacted police to report the matter. Approximately fifteen minutes later, at 11.15 am on 20 January 2022, the two of you were in the stolen Honda at the Westfield Shopping Centre car park in Airport West. The car was stationary, and the two of you appeared to be asleep, with you in the driver's seat.
24Two police officers were on duty in the area, and they were approached by a member of the public who reported your vehicle. One of the officers, First Constable Afaneh observed a car matching that description, being the stolen Honda Fit Shuttle that you were driving, drive towards Melrose Drive. The two police officers then heard via the police communications radio that a car matching this description was an outstanding stolen vehicle. First Constable Afaneh responded via police radio and alerted police units to the fact that this vehicle was in the Westfield Shopping Centre car park in Airport West.
25Numerous police units attended the area in an effort to locate you, including Police Air Wing. You drove the stolen Honda to the rooftop car park and parked, and you and your co-accused exited the car briefly. Police called for back-up. Your behaviour was, shortly, to escalate in gravity and in the danger it posed to the many others who were then at the shopping centre, and to the police whose role involved your arrest so as to minimise the continuing risk to others.
26First Constable Afaneh and Constable Lovell positioned their car at the bottom of the ramp. You entered the driver's seat of the Honda and drove this car down the ramp. Two police officers drove behind you in an unmarked police vehicle; another police officer also drove behind you in a police vehicle and activated lights and siren.
27Detective Acting Sergeant Craig Buchan was on foot orchestrating the movement of police vehicles. A large amount of pedestrian and vehicle foot traffic was in the area of the car park at the time you began to drive down the ramp. Detective Acting Sergeant Buchan directed another police vehicle to park at the base of the exit ramp, blocking you in. You stopped the stolen Honda halfway down the ramp due to being blocked in by police vehicles on either side. Detective Acting Sergeant Buchan began making his way on foot up the ramp to assist with intercepting you, followed by Constable Lovell. Detective Senior Constable O’Toole also exited her police vehicle to assist with intercepting you.
28You did not stop the stolen Honda Fit Shuttle as directed by police, and instead you drove the car at speed down the ramp and rammed a police vehicle. The car appeared stuck, and Detective Senior Constable O'Toole approached the driver's side door, and Detective Acting Sergeant Buchan and Constable Lovell approached the passenger side door. You then reversed the car suddenly, narrowly missing Constable Lovell, and struck Detective Acting Sergeant Buchan with the car, crushing his body, predominantly his right leg, between the stolen Honda and the steel fence of the ramp.
29You continued to reverse up the ramp, nearly colliding with Detective Senior Constable O'Toole, and causing her to jump out of the way of the moving vehicle. You reversed the car halfway up the ramp before accelerating and ramming two police cars at the bottom of the ramp, which caused the airbags to deploy in the stolen Honda and caused the car to become lodged between the two cars. You continued to rev the engine of the car trying to break the vehicle free. You were then arrested by police. This is the offending referable to your Charges 19, 20 and 21, each of recklessly exposing emergency worker to risk, with Charge 19 relating to Constable Lovell, Charge 20 relating to Detective Senior Constable O'Toole, and Charge 21 relating to Detective Acting Sergeant Buchan. This is also the offending referable to your Charge 22, a rolled-up charge of damaging an emergency service vehicle, and your related Summary Offence of failing to stop.
30Police searched you, your co-accused, and the stolen Honda, and located a small clear plastic bag containing cannabis on you, as well as a small clear zip lock bag containing methylamphetamine in the driver's side footwell of the car. This is the offending referable to your Charges 24 and 25, of possess drug of dependence. Police located $564.20 in your underwear, which was suspected of being proceeds of crime, which is the offending referable to your related Summary Offence of deal with property suspected of being proceeds of crime. A sample of your blood was later taken, which was analysed and confirmed to contain 0.24 milligrams per litre of methylamphetamine, which is the offending referable to your Summary Charge of drive a motor vehicle with more than the prescribed concentration of drugs in your blood; you were unlicenced at the time of this offending, which is the offending referable to your Summary Charge of unlicenced driving.
31You were released from hospital on 21 January 2022 and were conveyed to Heidelberg police station, where you declined to participate in an interview with police, as is your right. You were charged and remanded into custody pursuant to a Warrant issued by the Adult Parole Board.
32After your arrest, police seized the stolen Honda Fit Shuttle, and following a search and analysis, police seized 140 exhibits, including a driver's license which did not belong to you, the items stolen from SSH Hair Salon and the victim who was the business owner; and various items from other victims. Your possession of the driver's licence is the offending referable to your Charge 23, of handling stolen goods.
Effect on the victims
33The various allegations of burglary and theft resulted in considerable damage and loss, which I have summarised periodically. As I have mentioned throughout, your driving put others at considerable risk. Furthermore, Detective Acting Sergeant Buchan, the victim of your Charge 21, of the aggravated offence of recklessly exposing an emergency worker to risk by driving, required medical treatment for the injuries caused by you, which were assessed as involving a swollen distal thigh, and some light bruising, and minor abrasions. He was found to have decreased movement at the knee due to pain and was discharged later that evening with crutches. An MRI on 31 January 2022, confirmed a high grade muscle injury. I have the benefit of a Victim Impact Statement from this gentleman, and he has told me of the effects of your offending upon him. He is now extremely cautious about walking or moving behind any reversing vehicle, or a vehicle that is stationary, which has affected his personal and work life, and he has become even more hypervigilant around similar circumstances. You have interfered with his ability to perform exercise, which frustrates him and will continue to affect him for the foreseeable future. The residual effect of his injuries interrupt his sleep.
Plea of guilty and timing; remorse
34You were charged following your arrest, and the matter proceeded through the committal stream of the Magistrates’ Court and resolved as a plea of guilty at a committal case conference on 17 November 2022. I consider that your pleas are of significant utilitarian benefit, indicated as they were that they would be entered at the earliest stage of proceedings, prior to a committal proceeding, which avoided the need for any civilian or police witnesses to attend court and subject themselves not only to the imposition upon their time, but also the indignity of questioning testing their memory and truthfulness. Furthermore, at the time that you indicated your intention to enter those pleas, the court system in Victoria was experiencing crushing delays as an unfortunate result of the effects of the COVID-19 pandemic, and as a result I attach significant utilitarian weight to this factor as well, in accordance with the decision of the Court of Appeal in Worboyes. I also consider your pleas to be accompanied by remorse, conveyed through your counsel, and also through the author of the letter penned by another prisoner on your behalf.
Personal circumstances
35I have had the benefit in this case of very detailed defence submissions, summarising your personal circumstances and history, as well as expert reports assisting me in evaluating your presentation. You are now 31 years of age, and were 29 at the time of your offending. You were born to separated parents, and lived with your mother and brother in the western suburbs of Melbourne.
36You were diagnosed with an intellectual disability at a young age, and I accept and take into account the opinion of Dr Laura Anderson, registered psychologist and clinical neuropsychologist, that:
· you are likely to have functioned within the extremely low range throughout your lifespan;
· your working memory and information processing speed is within the very low range;
· your attention and concentration have deteriorated;
· your verbal skill, visuo spatial functioning and learning and memory capacities fall within the extremely low range; and
· your higher order abstract reasoning skills, particularly in the verbal domain, are severely impaired.
37Unfortunately, you also experienced a very traumatic upbringing, and were exposed to significant family violence, alcohol and drug use, and I regret to say sexual assault. Your father was very abusive, and would strike you across the face, and also assault your mother. He was a user of methylamphetamine and cannabis.
38You were sexually assaulted by a teacher when you were a child, and this has left you, understandably, deeply traumatised.
39Your mother took you and fled to Tasmania to escape the violence and horror, and you eventually returned to Melbourne when you were aged around 10. You left school halfway through Year 7.
40You have an intermittent work history, involving work at a fruit shop, as a waiter, and you have held intermittent labouring positions, but more recently you have been on Centrelink.
41You commenced using drugs at the age of 14, starting with cannabis, and then later magic mushrooms, methylamphetamine, benzodiazepines, cocaine, heroin, GHB, ecstasy and Seroquel. You have also used methadone and buprenorphine.
42You have a long criminal history, including Magistrates' Court appearances in November 2010 for the offences of robbery and perjury which resulted in a community based order, which was then breached, resulting in a period in detention in a youth training centre in May 2012, on which occasion you also received detention for property offences. In June 2013, you were sentenced for extensive offending including endangerment, failing to stop vehicle on police request, driving whilst authorisation suspended, assault with a weapon, and property offences, and drug possession, to a sentence in custody comprising a head sentence and a minimum period before parole eligibility. That order was then set aside in this Court in September 2013, and a more modest gaol sentence was imposed. You then received sentences of imprisonment in February 2015, May 2016 and September 2018. In November 2019, in reasons for decision with which I have been provided, you were sentenced in this court by His Honour Judge Coish on a range of offences including reckless conduct endanger serious injury, recklessly cause injury, property offences, negligent driving while pursued by police, and possess a drug of dependence to a total effective sentence of four years with a minimum period before parole eligibility of two years and six months. Other offences followed, including a further appearance in this court in December 2019 for offences of burglary and theft, which resulted in a new period before parole eligibility, and that parole order was still current and was breached by this offending.
43It was submitted in accordance with the decision of the High Court in Bugmy v The Queen (2013) 249 CLR 571 that your deprived background may mitigate the sentence that would otherwise be appropriate, at [37]. The court in Bugmy held that the effects of profound deprivation do not diminish over time and they are to be given full weight in the determination of the appropriate sentence in every case. The experience of growing up in an environment surrounded by abuse and violence may leave its mark on a person throughout life (at [43] and [44] of Bugmy).
44However, in that case at [44], it was noted that that was not to suggest, that an offender's deprived background has the same (mitigatory) relevance for all the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion, in my case, so difficult. Your childhood exposure to violence and abuse may explain your recourse to offending behaviour. However, the inability to control those urges may increase the importance of the need to protect the community from you.
45I understand that your offending occurred in the context of extensive drug addiction. In the context of your vulnerable intellectual health, your counsel urged me to apply all Verdins factors, to reduce the relevance of denunciation, general and specific deterrence, to find that moral culpability was reduced, and to observe that the existence of your condition will mean that a given sentence will weigh more heavily upon you than it would on a person in normal health. The prosecution did not seriously dispute this submission, and I agree that I ought to mitigate sentence in accordance with Verdins factors subject to the caveat expressed by the learned prosecutor that the material did not establish that there was a serious risk that imprisonment would have a serious adverse effect as opposed to it merely being more burdensome.
46I have given the application of Verdins principles in this case very careful consideration.
47For the first four principles to apply, there must be a connection between the intellectual impairment and the offender's moral culpability for his offending, or between the mental impairment and the need for general or specific deterrence. To demonstrate that connection, an offender must establish that, at the time of the offence, the mental impairment:
a)affected his or her ability to appreciate the wrongfulness of the conduct; or
b)obscured his or her intent to commit the offence; or
c)impaired his or her ability to make calm and rational choices, or to think clearly. (DPP v O'Neill (2015) 47 VR 395 [74]-[75]
48In the circumstances of this case, the evidence at its highest points to your intellectual impairment impairing your ability to make calm and rational choices, or to think clearly. However, you also acknowledge that your consumption of drugs to excess impairs your ability to make those sound decisions.
49I find that I am prepared to allow some moderation of your moral culpability, and of the weight to attach to general, and specific deterrence, on the basis of Verdins factors 1, 3, and 4. I also attach mitigatory weight to the linkage between your impairment and the circumstances of your service of time in custody, which affects your ability to socialise and work with other prisoners. Your time in custody is burdensome and has been made more so by the COVID restrictions. I mitigate sentence on each of these bases, and also on the basis of the long delay between your indication of your intention to plead guilty, and the date of this sentence.
50Overall, you have poor prospects for rehabilitation. You have an entrenched pattern of similar behaviour and this is far from your first appearance before the court for this type of serious offending. You were on parole at the time of your offences, which had already been breached, and that was of no deterrent to you.
Objective gravity of your offending; moral culpability
51I accept the prosecution characterisation of your offending as a crime spree committed by you over a period of only a few days, comprising 14 incidents, involving multiple incursions into, and thefts from, privately owned properties, as well as using stolen vehicles to ram places of business in order to effect entry.
52Your offending culminated in an incident in a well populated area, where you used a stolen vehicle apparently in order to effect an escape, with absolute disregard to the safety and the property of others. I was reminded that this incident occurred just prior to midday, in a public car park, at a time when there was a large amount of pedestrian and vehicular traffic. You were on parole at the time of your offending.
53You attempted to evade police, you took part in a very frightening event which endangered the safety of others, and in fact caused lasting injury and trauma to Detective Acting Sergeant Buchan.
54I am obliged to pay careful regard to the totality principle of sentencing and have structured orders for concurrency and partial cumulation in order to give proper effect to this principle of sentencing. I consider that your offending escalated and culminated in the events at the shopping centre.
55Your three aggravated offences of recklessly exposing an emergency worker to risk by driving are Category 2 offences under the Sentencing Act 1991 (Vic). A term of imprisonment must be imposed upon you unless one of the exceptions in s5(2H)(a)-(e) can be established. A sentence involving a combination of custody and a community correction order is not permitted. You bear the burden of establishing one of the statutory exceptions on the balance of probabilities.
56Whether an exception is established in accordance with settled principles is an evaluative judgment for me of cited cases.[1] One statutory exception is where there are 'substantial and compelling circumstances that are exceptional and rare' that justify not imprisoning an offender.[2] In considering this category, the legislation and case law indicates that I am bound by the following propositions:
(a) general deterrence and denunciation are to be treated as the most important sentencing consideration;[3]
(b) consideration of an offender's personal circumstances must be subjugated to consideration of other factors such as the nature and gravity of the offence;[4]
(c) prior character aside from an absence of priors, an early plea, prospects of rehabilitation and parity are prohibited considerations;[5]
(d) consideration must be given to the legislative intent that imprisonment should be imposed;[6]
(e) consideration must be given to whether the cumulative impact of the circumstances of the case justifies departure from the prima facie position, which may occur from the accumulation of a series of features, themselves of less significance.[7]
[1]Peers v The Queen [2021] VSCA 264, [62]; see also Fariah v The Queen [2021] VSCA 213, [24]
[2]Sentencing Act 1991 (Vic), s5(2H)(e)
[3]s5(2HC)(a)
[4]s5(2HC)(b)
[5]s5(2HC)(c)
[6]s5(2I)(a)
[7]s5(2I)(b), see Farmer v R [2020] VSCA 140, [51], [55] and [67]
57Your counsel emphasised the matters to which I have had careful regard, including your childhood deprivation and its legal significance, your diagnosis of intellectual disability, and the Verdins factors arising therefrom, as justifying a conclusion that the case involved substantial and compelling circumstances that were exceptional and rare, and justified imposition of a combination sentence.
58In reply, the prosecution submitted that your circumstances failed to reach this standard, and in any event the difficulty that I might encounter if I departed from the legislative presumption of immediate custody, is that I would be left imposing a disproportionately lenient sentence in relation to all of the circumstances of the case.[8]
[8]Munda v Western Australia (2013) 249 CLR 600
59I have reflected exceptionally carefully on the competing submissions, both in relation to the question of law, but also in their proper application to the facts of this case.
60In my analysis under s5(2H)(e) I am to consider whether those circumstances justify not imprisoning you. Without having descended into a two-stage process, this is a conclusion that I am unable to reach and, accordingly, I accept the prosecution's submissions that the operation of the balance of the provision is not triggered. In other words, I consider myself confined to imposing a term of imprisonment not to be served in combination with a community corrections order simply on the basis of proportionality.
61The sentences that I am about to impose have involved some moderation of weight to attach to general and specific deterrence, but for me, community protection looms large in this exercise, and I am also obliged to punish and to further deter you.
62On your charges of burglary and theft, and your charge of handling stolen goods, which is to say (Charges 1,4,6,8,12,14,17,2,3,5,7,9,11,13,15,16,18, 23) you are convicted and sentenced to an aggregate of two years and six months imprisonment, 12 months of which I order be served cumulatively upon the base and upon other sentences.
63On your charge of conduct endangering person, you are convicted and sentenced to 18 months' imprisonment, six months of which I order be served cumulatively upon the base and upon other sentences. (Charge 10)
64On your three charges of aggravated offence of recklessly exposing an emergency worker to risk by driving, and damaging an emergency service vehicle, you are convicted and sentenced to three years and three months' imprisonment – this is the base. (Charges 19,20,21,22)
65On the two charges of possess a drug of dependence (Charges 24, 25) convicted and sentences to two months concurrent. Now that is four years and nine months.
66On the three summary charges of failure to stop (Charges 15,36,43), you are convicted and sentenced to an aggregate of three months' imprisonment, one month cumulative.
67On the Summary charge of deal with the proceeds of crime, you are convicted and sentenced to two months' imprisonment, wholly concurrent (Charge 42).
68On the Summary charge of exceed prescribed concentration of alcohol (Ch 50) you are convicted and discharged.
69On the summary charge of unlicensed driving (Charge 36), you are convicted and sentenced to six months' imprisonment, one month cumulative.
70On the summary charge of drive in a manner dangerous (Charge 49), you are convicted and sentence to nine months’ imprisonment, wholly concurrent.
71This provides a total effective sentence of four years and 11 months imprisonment.
72I order that a minimum of three years and six months imprisonment be served before parole eligibility. I reckon 604 days presentence detention as served.
73I understand that there are forfeiture and disposal notices. Have you been given those ahead of time?
74MR RANJIT: I have, Your Honour. Sorry, I haven't been given them. I would be grateful if I could just go through it with my client.
75HER HONOUR: In which case the prosecution has 30 days, they are orders that I can make in chambers.
76MR RANJIT: Yes, thank you. Yes, I was about to indicate that, Your Honour, I'd be grateful for that.
77HER HONOUR: Yes. There was an ancillary order that I needed to make with respect to driving, as I recall.
78HER HONOUR: Just remind me what that order was. I don't have the document in front of me.
79MR BRYCE: Mandatory licence disqualification, Your Honour.
80HER HONOUR: Yes. Four years from today’s date.
81And finally, 6AAA, if the matters had proceeded to trial but resulted in guilty verdicts, I would have imposed a longer sentence. It is impossible for me to be more specific because of the summary offences, so I can only give an indication in respect of the indictable offences, which would give an incomplete picture if I were to be any more specific.
82MR RANJIT: Yes.
83HER HONOUR: Thank you. We will now adjourn.
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