Director of Public Prosecutions v Cardona

[2020] VCC 1422

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

AT MELBOURNE

CRIMINAL DIVISION

CR 19-00043

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES CARDONA

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JUDGE:	HIS HONOUR JUDGE C.J. RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	01 September 2020
DATE OF SENTENCE:	8 September 2020
CASE MAY BE CITED AS:	DPP v Cardona
MEDIUM NEUTRAL CITATION:	[2020] VCC 1422

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             engaging in conduct endangering persons - theft of a motor vehicle -plea of guilty – weak prosecution case – youthful offender – delay – general deterrence – specific deterrence

Legislation Cited:     Sentencing Act 1991

Sentence:                 15 months' imprisonment with a period of nine months' imprisonment as the time you must serve before you become eligible for parole – 6AAA: three years' imprisonment with a non-parole period of 18 months' imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Hancock	Solicitor for the Office of Public Prosecutions
For the Accused	Mr R Lawrence	James Dowsley and Associates

HIS HONOUR:

1James Cardona, on 1 September 2020, you came before me to conduct your plea, having been arraigned in short form on the present indictment on 24 February 2020 and pleaded guilty.

2You have pleaded guilty to two charges, being engaging in conduct endangering persons (Charge 1) and theft of a motor vehicle (Charge 2).  The offences occurred on 21 and 20 July 2018 respectively.

3The maximum penalty for Charge 1 is five years' imprisonment, while the maximum penalty for Charge 2 is 10 years' imprisonment.

4You admitted your prior criminal history that commenced in the Children's Court on 20 November 2012 when you were 15 years of age.  You have 14 findings of guilt or convictions arising from four court appearances.  You have prior convictions or findings of guilt for robbery and other dishonesty offences, as well as offences of violence and driving offences.  During the course of the plea, and tendered as Exhibit D, was a Victoria Police criminal record, that was accepted by your counsel, Mr Lawrence, to be accurate in respect to offending whilst on bail for the instant offences.  You appeared before the Magistrates' Court at Sunshine on 3 October 2019 for the offences of criminal damage, make threat to kill, threaten to damage property, commit an indictable offence whilst on bail, contravene a conduct condition of bail, and use a prohibited weapon without approval.  You were convicted and released on a Community Correction Order for 12 months, the only condition to that order being that you perform 100 hours' unpaid community work.  I will return to this matter.

5Tendered as Exhibit A, and read aloud in court, was the Summary of Prosecution Opening on Plea.  In brief, on 19 July 2018, your co‑offender, Matthew Jaeger, stole a four-wheel drive and trailer from a farm property at Wheatsheaf.  On 20 July 2018, you were captured on CCTV as the passenger and also the driver of the stolen vehicle at different times during that evening (Charge 2).

6At about 12.20 am on 21 July 2018, with Jaeger driving the stolen four-wheel drive and you as the passenger, you were involved in a police pursuit in Melton South.  You filmed the pursuit on your mobile phone.  The images from your phone became Exhibit C on the plea.  You were recorded in Exhibit C during the pursuit saying, 'Come on, come on, piggies.  Let's go.  Yeah, they're actually following us brother. Yeah'.  Jaeger can be heard to say 'I'm gonna ram ya', referring to the police vehicle.  You evaded that pursuit.

7Some 45 minutes later, with Jaeger as the driver and you as the passenger in the stolen four-wheel drive, you drove west along the Western Highway at Grangefields, when Jaeger crossed the westbound lanes of the highway, crossed over the grassed median strip, and travelled east along the highway.  Jaeger completed this manoeuvre in front of a marked police car that was travelling in an easterly direction along the highway.  Your vehicle was pursued by the police car that was driven by First Constable Webster, with Constable Bromley as her observer.  During the pursuit, Jaeger attained a speed of 120 kilometres per hour in a 110 kilometre per hour zone.  As you were being pursued, you leant out of the four-wheel drive and shone a torch into the eyes of First Constable Webster, the driver of the police car, which caused her to slow down temporarily.

8Shortly thereafter and at a time when the police car was directly behind the stolen four-wheel drive, your co‑offender braked suddenly and came to a complete stop on the freeway.  In response, Constable Webster braked heavily and came to a stop approximately 30 metres behind your vehicle.  Jaeger then placed the four-wheel drive into reverse and drove at the stationary police car, ramming the front of the police car with sufficient force to cause the airbags in the police car to deploy.  As a result of the collision, First Constable Webster suffered redness, swelling, minor lacerations and a sore wrist.  Constable Bromley suffered a soft tissue injury to his neck.  After the collision, Jaeger simply drove away from the scene.

9An investigation conducted by a member of the Collision Reconstruction and Mechanical Investigation Unit of the Victoria Police established from the airbag control module from the police car that it was stationary at impact and assessed the speed of the vehicle that you were a passenger in as between 15 and 19 kilometres per hour at the point of impact.

10On 23 July 2018, you were arrested and interviewed under caution.  During the interview, you said:

·that you were in the back seat of the car;

·that you drove the car for 10 minutes, either to or from Mac's Hotel;

·it was like fun and games;

·you picked up a mate of Jaeger's who was 'holding a torch out the window';

·the torch had a trigger on it and looked like a megaphone;

·you used the torch yourself earlier in the day at the weir;

·Jaeger did a U‑turn on the freeway and then he 'slammed on the brakes and some cop slammed up his arse';

·he took off, 'I told him to stop and, shit, he wouldn't stop; all I was really worried about was if whoever was in the car was alright';

·you did not know that the car was stolen, that is the car in which you were a passenger; and

·you denied driving the car at the time it collided with the police vehicle.

11After the conclusion of the interview, you were charged and remanded in custody.  You were released on bail on 9 August 2018.  At the time of your plea, you had served 18 days by way of pre-sentence detention.

12The consequences from the collision between the car driven by your co-offender on the occupants of the police car have been significant and they are set out in the victim impact statements of First Constable Webster and Constable Bromley.  First Constable Webster, as at March 2019, replayed the incident in her head 'all the time'.  She had to seek professional help for the effects that the deliberate ramming of the motor vehicle that she drove had on her mental health and how it affected her relationship.  Her reaction to the incident caused friction between herself and her partner and, as at March 2019, she still had difficulty sleeping properly.

13Constable Bromley questioned whether he should quit the police force. The effects of the collision adversely affected his moods.  He suffered sleepless nights and his change in mood affected his relationship with his partner.

14It must be noted that Charge 1 is pleaded in the following terms:

'… that James Cardona at Grangefields in Victoria on the 21st day of July 2018 without lawful excuse recklessly engaged in conduct namely using a motor vehicle to ram a police vehicle …'

15Mr Lawrence accepted that the Crown was entitled to rely upon the previous pursuit and the contents of Exhibit C, as well as your conduct of flashing the torch at the driver of the police car, the subject of Charge 1, as circumstantial evidence to establish that by your presence you encouraged the principal, Jaeger, to drive in the manner as described causing the collision with the police vehicle.

16By your plea, you must be taken to have solemnly admitted that you encouraged Jaeger, the principal, to perform the act that founds Charge 1.

17In the circumstances set out above your plea should attract an additional level of discount because of the weakness of the prosecution case.

18Mr Cardona, you are 23 years of age and, accordingly, a youthful offender.  You were 21 years of age at the time of your offending.  You are unemployed and live with your partner, Ms Mifsud (the author of Exhibit 7) and your four-year-old daughter, Dakota, with Ms Mifsud's relatives.

19Your father is deceased, having died in June 2017 of a heart attack after having presented at hospital and being sent home.  At home, he deteriorated during the night and returned to hospital and died.  I was informed that your last words with your father were not friendly despite you being close to him.  You mourn your father and your grief is unresolved and you attribute in part your abuse of methylamphetamine to this unresolved grief, although you have been an abuser of methylamphetamine since your early teens.  As a sad coincidence, Ms Mifsud's father died in September of the same year and his death adversely impacted on her, and you to a lesser extent.

20You grew up in a large and happy family where you felt secure.  You instructed Mr Coffey, psychologist, whose report dated 16 August 2020 is Exhibit 2 on the plea, that you were bullied at primary school and that this adversely affected you.  You first used cannabis at age 11 and methylamphetamine at 12 years whilst still at primary school.

21When you started secondary school you played truant and, together with other children, committed crimes.  At 15 years of age, in 2012, you appeared at the Children's Court for robbery and other offences.  You were expelled in 2013 at age 16 and left home and went to live with your then girlfriend's family.  With the breakdown of that relationship, you returned school, being the Community and Learning Melton School, in 2014 and in that year you commenced your relationship with Ms Mifsud.  In 2015, aged 18, you completed the Year 12 VCAL program.

22While attending school in 2015, you worked cleaning a butcher's shop and installing floating timber floors.

23In 2016, you commenced an apprenticeship in construction.  In that same year, your daughter was born.  At that stage of your life, you were living with your partner and daughter, with Ms Mifsud's father.

24In 2017, you discontinued your apprenticeship and in that year your father and Ms Mifsud's father died.  You also appeared at the Sunshine Magistrates' Court for driving whilst disqualified and other offences.

25In 2018, you and Ms Mifsud moved into your own rented home and you worked laying turf.  However, by May of that year, Ms Mifsud separated from you and returned to live with her mother.  About this time, a family violence intervention order was granted to protect Ms Mifsud.  Thereafter you lived an itinerant life marked by the heavy use of methylamphetamine.

26On 20 and 21 July 2018, you committed the instant offences and were remanded in custody for 18 days.  During your time in custody, you gained considerable weight, having entered prison weighing but 58 kilograms.

27I pause to deal with the chronology of this prosecution.  On 23 July 2018, you were arrested, charged and remanded in custody.  On 9 August, you were granted bail.  On 9 October, you offered to plead guilty to two charges, being reckless conduct endangering serious injury, on the factual basis of shining the torch at the police vehicle, and theft of a motor vehicle.  On 11 January, a committal proceeding took place where no witnesses were called but submissions were made as to your criminal liability in respect to other and more serious charges than you now face based on the evidence then available to the prosecution.  You were committed for trial on that day.  On 15 January 2019, an initial directions hearing was conducted.  On 13 December 2019, a final directions hearing was adjourned until 3 February 2020.  In the interim, on 28 January 2020, you offered to plead guilty to a charge of recklessly engaging in conduct endangering persons on the factual basis of shining the torch at the driver of the police car and being complicit with the ramming of the police vehicle.  The offer was rejected on 6 February 2020.  On 18 February 2020, the prosecution changed tack and accepted your offer and, on 24 February 2020, you were arraigned and pleaded guilty to the present indictment.  There has been delay in this prosecution not the least being the time between your arraignment on 24 February and plea proceedings on 8 September 2020.  You are, at the least, entitled to the benefit arising from the delay between arraignment and plea.

28In addition, prior to the settlement of this matter you were charged with the aggravated offence of intentionally exposing emergency worker to risk by driving, the offence to which your principal pleaded guilty, as well as its alternatives.  Ultimately the Crown settled for the least serious offence on which you were to stand trial and the offence that you had offered to plead guilty to in October 2018 albeit on a different factual basis.  I take your plea as having been entered at an early stage and you are entitled to the benefits that flow to you from your plea being that it has utilitarian value and it is some evidence of your remorse.

29After the committal case conference of 18 October 2018, you referred yourself to Headspace in Melton and sometime shortly thereafter you commenced counselling with Odyssey House Victoria and underwent nine counselling sessions between 23 November 2018 and 15 May 2019. (See Exhibit 3.)

30Exhibit 4 on the plea is a letter from MacKillop Family Services dated 10 September 2019.  MacKillop Family Services engaged with you and Ms Mifsud in the care of your daughter, Dakota.  The family violence intervention order that had been obtained by Ms Mifsud was varied to allow you to visit her and your daughter and to attend the sessions with representatives of MacKillop Family Services.  I was informed on the plea that employees of MacKillop Family Services would attend at Ms Mifsud's address and observe you and Ms Mifsud in the care of your daughter Dakota and did so for many weeks.  The author of the letter from MacKillop Family Services, Ms Coles, in part wrote:

'You have been able to be a significant support to Kiara [Ms Mifsud] in managing her own mental health and taking on a primary care role of Dakota when needed.'

31Ms Coles noted progress and positive changes in respect to you and the care of your daughter; she also noted your enthusiasm to make long-term changes for your family.

32Mr Coffey, psychologist, made findings and observations in respect to you arising from his consultations with you on 29 July and 11 August this year being:

·you did not appear significantly depressed;

·you denied any suicidal ideation and had not experienced thoughts about harming yourself since prior to the index offending;

·you exhibited no perceptual disorders, nor was there any formal thought disorder present upon interview.  You held no delusions and did not have abnormal preoccupations;

·you reported frequent thoughts about returning to the use of methylamphetamine although you had actively resisted these impulses;

·you exhibited no evidence of any impairment in your cognitive functioning; and

·you did not demonstrate a range of maladaptive personality traits that would warrant the diagnosis of a personality disorder.

33Mr Coffey did not believe that mental illness played any direct role in your offending.  He opined:

'It is my opinion that at the time of the offending Mr Cardona knew the nature of his conduct and he knew that the conduct was wrong but owing to the effect of the substances he had consumed, he was both impulsive and relatively heedless of the consequences of his actions.  His judgment was significantly impaired by substance intoxication.'

34Significantly, Mr Coffey found that you remained reliant on cannabis to assist yourself when you feel anxious or are craving methylamphetamine.

35You have a supportive partner and family, who are authors of Exhibits 5, 6, 7 and 8, being references authored by your grandfather, your mother-in-law, your partner and your mother.  Each write as to the effect of your father's death upon you, that you are devoted to your daughter and that you have changed for the better since the time of your offending. 

36Tendered as Exhibit 9 was a report from the Scott Street Medical Centre dated 10 July 2020 that sets out current diagnoses made in respect of you.  The diagnoses are substance abuse (marijuana, ice), depressive anxiety disorder and epigastric pain.  You are treated with Temaze, a benzodiazepine, 10 milligrams nocte for sleep; Somac in respect of reflux; and Zofran Zydis for nausea.  The author of the report, under the heading 'Treatment implemented or referrals made for Mr Cardona', notes that you should have regular GP reviews, a referral to a psychiatrist via a mental health care plan, a referral to a forensic psychologist for further assessment and management, a referral to a psychiatrist for further assessment and management, and a referral to a gastroenterologist in respect of your epigastric pain.  It is to be noted that not one of these recommended referrals has been put in place or pursued by you.

37Mr Lawrence of counsel submitted that in all the circumstances a community correction order with stringent conditions, including judicial monitoring, was the appropriate disposition in your case.  At the end of the part-heard plea, I had you assessed for a community correction order and after a telephone conference with a Community Corrections officer you were assessed as a suitable candidate for a further community correction order, despite you being assessed as a high risk of general reoffending.

38Of concern in respect to your prospects of rehabilitation is your appearance at the Sunshine Magistrates' Court on 3 October 2019, to which I have already referred.  I was informed that you were prompted to offend because your victim had stolen your gaming identity and, outraged by this conduct, armed with nunchakus, you attended at his property and committed the offences which I have already detailed.  It is apparent that you have little, if any, impulse control because these offences were committed whilst you were on bail for the instant offending, with you having spent some days on remand in custody.  To offend in the way in which you did in the circumstances in which you found yourself, even allowing for your youth, does not auger well for your rehabilitation.

39Of further concern is your performance on the community correction order.  You have performed only a handful of hours of unpaid community work and for most of 2020 you have not been in contact with those supervising the order.  This too gives me real concern as to your prospects for rehabilitation.

40You informed Mr Coffey that you have been abstinent from methylamphetamine from the time that you were remanded in custody.  However, you have self-medicated by the consistent use of cannabis, which you use to alleviate your cravings for methylamphetamine.  While Mr Lawrence sought to deal with this matter by submitting that it represented a frankness by you with Mr Coffey, the reverse of the coin is that since your release on bail in 2018 you have been a habitual abuser of cannabis and involved in the trafficking of that substance by way of being the ultimate consumer.  That is, you have been consistently in breach of the law whilst on bail and accordingly in constant breach of your bail.  This, too, does not auger well for your prospects of rehabilitation.

41Mr Lawrence informed me that you had assisted the Homicide Squad in respect to a murder investigation by making a statement concerning a piece of gold shown to you by the suspect for the murder.  Mr Lawrence submitted that the contents of your statement may link the suspect to the deceased.  Ultimately that statement became Exhibit 11 on the plea.  You are entitled to a benefit for this co-operation with authorities.  It should be noted that Exhibit 10, which is an email chain of correspondence with the informant in the murder prosecution wherein the informant writes that he does not know whether you will be called in the prosecution of the accused.  Whilst it is unclear to me the precise worth of the information you provided to the homicide squad it has some potential value and accordingly you are entitled to the benefit of your cooperation with authorities.

42From the contents of your statement the relationship between you and the accused in the murder prosecution appears to have been one where you supplied the accused with cannabis.  This fact adds to my disquiet as to your prospects of rehabilitation.

43Mr Coffey in his report recommends treatment akin to that recommended by your general practitioner and which you have failed to take up.  You remain addicted to cannabis.  You have committed serious offences whilst on bail for the instant offending.  You have been assessed as a high risk of reoffending generally and have not complied with the community correction order that you were placed on in October last year.  While you are a youthful offender and any sentence imposed upon you must look to your rehabilitation, despite the benefits that you are entitled to arising out of your plea and your cooperation with authorities in respect of another investigation I am not satisfied that a community correction order meets the purposes of sentencing in your case.

44Will you please stand, Mr Cardona.

45You are an appropriate vehicle for the application of general deterrence.  You are a person who must be specifically deterred from reoffending.  Your conduct must be denounced.  Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:

46On Charge 1, 12 months' imprisonment; and

47On Charge 2, six months' imprisonment.

48I order that three months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed upon Charge 1.  This results in a total effective sentence of 15 months' imprisonment and I fix the period of nine months' imprisonment as the time you must serve before you become eligible for parole. 

49I declare that you have spent 18 days by way of pre-sentence detention.

50Pursuant to s6AAA of the Sentencing Act 1991, I declare but for your plea of guilty I would have sentenced you to three years' imprisonment with a non-parole period of 18 months' imprisonment.

51Is there anything arising out of the sentence?

52MR LAWRENCE:  No, Your Honour.

53HIS HONOUR:  Mr Hancock?

54MR HANKOCK:  No, Your Honour.

55HIS HONOUR:  Thank you.  Remove the prisoner, please.  Could we adjourn the court till 9.30 on Thursday, please.

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