Director of Public Prosecutions v Calleja
[2023] VCC 867
•8 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-02111
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN CALLEJA |
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JUDGE: | His Honour Judge Maidment |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 May 2023 |
DATE OF SENTENCE: | 8 May 2023 |
CASE MAY BE CITED AS: | DPP v Calleja |
MEDIUM NEUTRAL CITATION: | [2023] VCC 867 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Aggravated offence of intentionally exposing emergency worker to risk by driving - dangerous driving whilst pursued by police - possess drug of dependence - damage emergency service vehicle by reckless driving - possess prohibited weapon - unlicenced driving - fail oral fluid test
Legislation Cited:
Cases Cited:
Sentence:15 months' imprisonment, 2-year CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Ellwood | Office of Public Prosecutions |
For the Accused | Mr N. Rolfe | Rolfe Criminal Law |
HIS HONOUR:
1John Calleja, you have pleaded guilty to the following offences on the indictment:
- two charges of aggravated offence of intentionally exposing an emergency worker to risk by driving, for each of which the maximum penalty is imprisonment for 20 years;
- dangerous driving whilst pursued by police, for which the maximum sentence is imprisonment for three years;
- possessing a drug of dependence, for which the maximum sentence is imprisonment for one year; and
- damaging emergency service vehicle by reckless driving, for which the maximum penalty is imprisonment for five years.
2You have also asked me to take into account and have today pleaded guilty to three related summary offences:
- possessing a controlled weapon, for which the maximum penalty is imprisonment for two years;
- unlicenced driving, for which the maximum penalty is imprisonment for six months; and
- failing an oral fluid test, for which the maximum penalty is a fine of 120 penalty units.
3You have admitted a prior criminal history which includes a road safety certificate setting out road traffic offences, one of which was in November 2019, for failing an oral fluid drug test within three hours of driving. And in 2016 August, an offence of recklessly engaging in conduct placing another person in danger of serious injury.
4The prosecution has tendered and relied upon a summary of opening which was first outlined to me in relation to the sentence indication hearing which preceded today's plea hearing and which is adopted for the purposes of this hearing today. That is Exhibit A, it has just been read out, I am not going to repeat the terms of it.
5Suffice to say that the offences are all serious offences, in particular the offences of aggravated offence of intentionally exposing an emergency worker to risk by driving. The police and other emergency service workers require the courts to impose sentences that offer them a measure of protection in the dangerous work that they carry out as part of their duties. That is reflected in the maximum penalty of imprisonment for 20 years.
6This was outrageous conduct on your part although thankfully it caused no injury. Whilst an offence of that kind is always a serious offence the facts relating to this particular offence seem to me to be at the lower end of the spectrum in terms of seriousness.
7As far as the offence of dangerous driving whilst pursued by police, I would regard that again as outrageous conduct. You were putting members of the public as well as the police in pursuit in danger. The maximum penalty for that offence is three years, I regard this as being at least a mid-range case of dangerous driving in those circumstances.
8As far as the damaging the emergency vehicle by reckless driving, reversing into the police vehicle and causing more than $16,000 worth of damage, that too, was an outrageous piece of conduct and was a serious example of that offence, although it was part and parcel of what I have already described as an outrageous and serious example of all of these offences in their own way. Such conduct must be visited by a term of imprisonment to mark the seriousness of the offending.
9It seems to me that your history of incarceration over the last 13 years or so has placed you in serious danger of institutionalisation. The court is bound to consider protection of the public as being a very significant sentencing factor along with just punishment, denunciation, general deterrence and in your case individual deterrence, all of which points to the need for a term of incarceration.
10Had it not been for the points made by your counsel which suggest offering a measure of opportunity for you to demonstrate that you are genuinely concerned to further your rehabilitation and to lead a more settled and law-abiding life, I would have sentenced you to a term of imprisonment in the order of three years or more with a non-parole period in the range of about two years.
11That was the sentence that I notionally had in mind before your counsel sought to persuade me that what might be regarded as a risky but perhaps more enlightened approach to protection of the public might be achieved by a Community Correction Order. Pursuant to that submission I sought a suitability report from Community Corrections. The report that I received dated 21 April 2023 found you unsuitable for a Community Correction Order. Ordinarily I would regard that as being highly influential in determining an appropriate sentence, to the point where I would have been unpersuaded that it was open to the court to impose a combined sentence essentially overriding the opinion of the Community Correction officers who are responsible for authoring the report.
12I also received a report from Forensicare which identifies aspects of your mental health issues, which clearly require treatment and which go some way, if you are able to receive that treatment, to supporting the contention that public protection can better be achieved by a Community Correction Order.
13There is no doubt that the court is in a position to better structure your rehabilitation once you have finished your term of imprisonment with a Community Correction Order. The court has no control over the kind of rehabilitative measures that might be available on parole.
14There is no guarantee you would get parole and it seems to me that with you now being 29 years of age and having been incarcerated for a very substantial portion of your mid to late teens and adulthood, now is the time to take that chance and accede to your counsel’s submission that a combined sentence involving a term of imprisonment followed by a Community Correction Order may best achieve all of the sentencing objectives, including promoting your rehabilitation.
15The prosecution has considered that submission and I think responsibly have supported that as an appropriate course despite the serious nature of the offending conduct. In those circumstances, I propose to make the order that I have already indicated I would make.
16The Community Correction Order is only available as a sentencing option if you consent to it. I have no doubt that you have discussed that with your counsel. But it is necessary for me to go through the proposed terms I would attach to the Community Correction Order and they will include further punitive aspects, given the serious nature of the offending, as well as rehabilitative measures.
17I will go through those conditions in a moment, but I will deal first with the other sentencing orders.
18John Calleja, for the offence of committing an aggravated offence of intentionally exposing an emergency worker to risk by driving, the subject of Charge 1, you are convicted and sentenced to imprisonment for a period of
12 months.19On Charge 2, of committing a similar offence in relation to the other occupant of the police vehicle, you are convicted and sentenced to a term of imprisonment of 12 months.
20On Charge 3 on the indictment of dangerous driving whilst pursued by police you are convicted and sentenced to imprisonment for a period of six months and disqualified from holding or applying for a driver's licence for a period of five years from today.
21On Charge 4 of possessing a drug of dependence, you are convicted and sentenced to imprisonment for a period of one month.
22On Charge 5 of damaging an emergency service vehicle by reckless driving, you are convicted and sentenced to imprisonment for a period of eight months.
23On Summary Charge 13 of possessing a controlled weapon, namely a
flick knife, you are convicted and sentenced to imprisonment for a period of
two months.24On Summary Charge 18 of unlicenced driving, you are convicted and sentenced to imprisonment for a period of one month and disqualified from driving or seeking or obtaining a driver's licence for a period of six months from today.
25And on Summary Charge 21 of failing an oral fluid test, you are convicted and fined $2,000 and disqualified from driving or seeking or holding a driver's licence for a period of two years from today.
26In relation to each of Charges 1, 2, 3 and 5 on the indictment, I also would impose a Community Correction Order subject to your consent.
27In relation to the terms of imprisonment that I have imposed, I order that one month of the sentence on Charge 3 of dangerous driving whilst pursued by police, and two months of the sentence on Charge 5 of damaging an emergency service vehicle be served cumulatively upon one another and upon the sentences of 12 months that I imposed on Charges 1 and 2.
28That makes a total effective sentence of imprisonment for a period of
15 months.29I declare 375 days pre-sentence detention as time to be reckoned as served upon the sentences of imprisonment that I have imposed.
30I now go through the terms of the Community Correction Order.
31The order I would make would start at the conclusion of the sentence of imprisonment that I have imposed and I order that the period be for a period of two years from that date. I need to get some details from you as to which Community Corrections Centre, Mr Rolfe, would be appropriate.
32MR ROLFE: I think it would be Sunshine, Your Honour.
33HIS HONOUR: You will be required to report to the Community Correction Centre at Sunshine, the address of which will be on the order once that is drawn up, within two clear working days of the order commencing.
34You must comply with the terms of the order. If you fail to comply with any of those terms then you are potentially up for a term of imprisonment of up to three months for breaching the order and you could be resentenced for the offences for which I have imposed sentence today, which would almost certainly result in a longer term of imprisonment.
35If you breach the order by committing further offences during the period in which the order is in force, that is, offences punishable by imprisonment, then that would not just breach the order but it would obviously impose a risk that you might be sentenced for that offence in addition to any sentences resulting from the breach of the order. So the order would be like a suspended sentence hanging over your head during the period of the order.
36In addition, you will be required to report as directed by the regional manager. You will be required to notify Corrections of any change of address or occupation. You will be required not to leave Victoria and you must also comply with the Sentencing Regulations which require you to report as required in a sober, drug-free condition and other matters such as that.
37I would also impose as part of the order the requirement that you complete 200 hours of unpaid community work; however I would attach to that an order that 100 hours of treatment and rehabilitation satisfactorily completed by you could be treated as hours of unpaid community work completed.
38I would also require that you be subject to other conditions:
- that you engage in treatment and rehabilitation as directed by the regional manager, including testing for the presence of drugs as part of the condition for treatment and rehabilitation for your drug habit;
- treatment and rehabilitation for alcohol abuse;
- treatment and rehabilitation, which may include hospitalisation as an in-patient and assessment, for mental health conditions;
- treatment and rehabilitation with programs to reduce risks of reoffending;
- supervision by a Community Correction officer during that period of two years, being required to report to that officer as directed;
- attending for judicial monitoring which would occur on approximately a three-monthly basis during the course of the order - that is designed to ensure that you are focused on completing the order and focused on your rehabilitation rather than reverting to your habitual drug use and resorting to further criminal activity.
39I am going to give you an opportunity now to have a chat with your counsel about those conditions. We have not drawn up a draft order at this stage, but have I given you enough information to work with?
40MR ROLFE: You have, Your Honour, thank you.
41HIS HONOUR: I'll leave the court for a few minutes and give you an opportunity of having a chat with your client and making sure that he understands what he's up for and the risks that he undertakes by agreeing to this order, because with his history it's not necessarily going to be an easy road for him.
42MR ROLFE: No.
43HIS HONOUR: And I don't really want to set him up to fail, because if he is brought back in breach then there is a real risk that he'll get a significant further addition to his term of incarceration, so that's not the purpose of this order. The purpose of this order is to give him an opportunity of changing his life.
44MR ROLFE: Certainly.
45HIS HONOUR: All right well I'll give you 10 minutes, is that enough?
46MR ROLFE: That'll be ample, Your Honour.
47HIS HONOUR: Mr Rolfe, you're happy that your client understands what his obligations are?
48MR ROLFE: I am Your Honour. I went through the various conditions and he fully understands the conditions and the potential ramifications.
49HIS HONOUR: All right.
50MR ROLFE: I thank Your Honour for that time.
51HIS HONOUR: Mr Calleja, your counsel has indicated that you understand the proposed order. Are you willing to consent to being placed upon that order?
52OFFENDER: Yeah.
53HIS HONOUR: I make the order as consented to once it is drawn up and you will receive a copy of it in due course. So, I make that order in the terms I've already indicated.
54And I declare under s6AAA of the Sentencing Act that but for your pleas of guilty I would have sentenced you to imprisonment for a period of four years and nine months with a non-parole period of three years and two months.
55And I understand there are no ancillary orders Mr Ellwood?
56MR ELLWOOD: No, Your Honour.
57HIS HONOUR: Were there any other matters?
58MR ELLWOOD: No, Your Honour.
59MR ROLFE: Just one matter.
60HIS HONOUR: Yes.
61MR ROLFE: I'm not sure whether it was the acoustics or not. Did Your Honour say 275 days or 375?
62HIS HONOUR: Well, I hope I said 375.
63MR ELLWOOD: You did say 375.
64HIS HONOUR: I confirm that the pre-sentence detention is 375 days.
65MR ROLFE: I thank Your Honour.
66HIS HONOUR: Yes, I thank you both.
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