Director of Public Prosecutions v Caruso

[2021] VCC 1018

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01569

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH CARUSO

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2021
DATE OF SENTENCE:	21 April 2021
CASE MAY BE CITED AS:	DPP v Caruso
MEDIUM NEUTRAL CITATION:	[2021] VCC 1018

REASONS FOR SENTENCE

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Subject:

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Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Burnett
For the Accused	Ms Anderson

HIS HONOUR: 

1Joseph Caruso, you have pleaded guilty to one charge of the aggravated offence of recklessly exposing an emergency worker to risk by driving, and two summary charges, being driving a motor vehicle while disqualified and driving a motor vehicle within three hours after having a drug sample in your blood. 

2The maximum penalties for those offences are set out in the prosecution opening, which I incorporate by reference.[1]  In particular, the index offence of recklessly exposing an emergency worker to risk by driving carries a maximum penalty of 10 years' imprisonment, and under the Sentencing Act 1991 there must be a sentence of imprisonment.[2]

[1] Exhibit A on the Plea.

[2] (Vic).

3The circumstances of the offending were set out in the prosecution opening, which was read in open court this morning and which I incorporate by reference.  In brief outline, the offence occurred when you were driving a vehicle that was stolen bearing incorrect registration plates, and that is the aggravating element of the offence, and that you were reckless as to whether that motor vehicle, which was a Toyota Hilux stolen about a week earlier, had incorrect registration plates.

4You were driving the car, and you drove it to a premises in Coburg North.  Now, there were two other persons who were evading police at the time.  They had been the subject of a police chase and there must have been some communications between you, because they drove into an underground car park and then they ran and jumped into your vehicle.

5The police were on their trail and the police in an unmarked police car then drove or parked their vehicle behind your vehicle, blocking it.  It might have been in front of your vehicle, blocking it from movement.  Then the police exited the vehicle with their full police kit, calling on you to stop and saying you were under arrest and trying to arrest you and the other two people in your vehicle, the Hilux. 

6At that point Detective Griffiths, being the main police officer who was approaching your driver's door, which you locked, had his OC spray with him, and you then attempted to evade him by ramming the car in front, putting the car into reverse, accelerating, colliding with the car behind you, then ramming it, driving it forward into the police car.  And you did this two more times to try and get away from the police, but you were blocked in, damaging the front quarter panel of the police vehicle and damaging presumably the vehicle behind you owned by a civilian.

7Detective Griffiths was right beside your car.  Your car did not hit him, but that conduct exposed him to risk, which is the aggravated reckless exposure to risk of an emergency worker, which was the gist of the offence.  You were getting nowhere.  They then smashed the driver's side window and used OC spray to subdue you and the other occupants.  You were taken off to hospital and then later on gave a no comment record of interview.

8When you were at hospital the police took a blood sample, as they were entitled to do, and that found that there was methylamphetamine in your system.  That is the Summary Charge 10.  You had been previously been disqualified from driving for a period of two years on 17 August 2017, so you were a disqualified driver, which is the second summary offence.

9You were arrested.  You either did not apply for bail or remained in custody.  The matter was the subject of a contested committal on 18 November, so finally the committal hearing was adjourned on the prosecution application on 24 February 2020.  So after 238 days in custody you were released.  Two days later, after getting bail, you were admitted to the Odyssey House facility out in Lower Plenty and you have been there since. 

10You were subsequently the subject of a contested committal and the matter resolved late last year in post-committal negotiations and then you were presented to this court.  You made an unsuccessful application to have the matter remitted to the Magistrates' Court, which I refused a month or two ago.  Your counsel Ms Anderson did not contest the circumstances of the offending as set out.

The seriousness of the offending

11The nature of this offending can vary widely in seriousness.  This was reckless as distinct from intentional conduct against the police officers.  There were a number of aggravating features.  You were reckless as to whether the vehicle was stolen. If you are driving around in a car with stolen number plates, well, you knew that it was stolen, but the mental element is reckless.

12Clearly in terms of the endangerment or risk, you knew the police officers were police officers.  They had, as I indicated, the full kit on and they were attempting to arrest you and you were trying to escape, get these other two people away as well.  So, this offence of aggravated conduct endangering an emergency worker is directed at exactly the conduct you were engaged in:  attempting in a drug-induced state, which is another aggravating feature, to evade capture.  You put the police officers at risk of some danger due to the erratic driving, ramming the car backwards and forwards, a large vehicle in a confined space. 

13Another aggravating feature as put by Ms Burnett is that there was damage to the police vehicle and indeed to the other vehicle as well.  Further, you were under the influence of a well-known erratic behaviour inducing drug, namely methylamphetamine, such that the well-known forensic medical specialist Dr Odell opined that you were incapable of proper control of the vehicle at that time due to the influence of methylamphetamine in your system.

14Two other aggravating features to your conduct were that you were a disqualified driver at the time, and you were also on a Community Corrections Order that had been imposed about six months earlier.  So, all those features make it such that this is a case where the offending can be characterised in the mid-range of seriousness.  While there was no premeditation, it was of short duration, but it was a determined effort to evade arrest when you knew police officers were trying to arrest you.

Prior convictions

15You are now aged 29 and somewhat surprisingly, or perhaps uncharacteristically in this court, for this serious offending you have relatively limited criminal history.  In 2017, you were before the Magistrates' Court on two charges of driving whilst authorisation suspended, failure to notify change of address, using an unsafe vehicle and that was adjourned for a year without conviction to attend and participate in a road trauma awareness seminar.

16Earlier in 2019, you were before the Melbourne Magistrates' Court on charges of handling and receiving stolen goods, 19 charges of theft, failing to answer bail, driving whilst disqualified, two charges, theft from a shop, committing indictable offence on bail, using unregistered motor vehicle on a highway and again without conviction you were dealt with by way of a six-month Community Corrections Order that commenced on 30 January 2019.

17So, you have been five months into this Community Corrections Order when you committed this offending and there are still breach proceedings outstanding in relation to that Community Corrections Order.  But the significant factor as far as your prior criminal history is concerned is that it has been relatively low level and without conviction dispositions, this is the first time you have appeared in the higher court.

Matters in mitigation

18In a comprehensive plea submission, which I have exhibited, considered and placed on the file, your counsel put a number of matters which I will address in summary.[3]  First, you pleaded guilty.  It was relatively early, as conceded by the Crown, although it was after a contested committal.  But you are entitled to credit for your plea of guilty.  You have accepted responsibility and facilitated the course of justice, which is an important consideration in the COVID world we are just emerging from.  Your plea itself is some evidence of remorse and there is also reference to your remorse in the CCO assessment that I obtained. 

Personal circumstances

[3] Exhibit 1 on the Plea.

19Again, they are set out in the submission from your counsel and also in the report from Dr Cunningham, a forensic psychologist.[4]  You had a difficult upbringing with both your parents addicted to drugs, particularly your mother, and your father was also abusing drugs such that you were brought up by other family members, your aunty.  Your father worked long hours, so there was a lack of parental direction in your upbringing, leading to early use of drug experimentation and use of drugs.

[4] Exhibit 2 on the Plea.

20Notwithstanding these difficulties, you managed to get your VCE, and you worked in a family business in a café and you also did four years or so as a locksmith.  So, you have had some occupational background; you, however, began abusing GBH and methylamphetamine and that is what led to your dishonesty offending, which took you to the Magistrates' Court in this where you got the Community Corrections Order.  But it also led to dealing with negative drug-using peers and it was those drug-using peers that jumped into your car when you arrived at the location where the offending occurred in July 2019.

Post-arrest events

21You were arrested and you then remained in prison for nearly eight months, including ultimately at the Barwon Prison.  So, for a person of your age without any prior sentences of imprisonment, it would have been a very salutatory experience.  The burden of imprisonment was increased because your mother passed away while you were in prison, so you were unable to sort of farewell her.  So, after a period of 238 days in custody a bail application was made and then your solicitors or someone arranged for you to be admitted to Odyssey House. 

22The reports from Odyssey House indicate that you are a success story.[5]  You are well on the way to recovery and there was an Odyssey House worker here this morning to support you.  Not only that, the reports that were filed, the correspondence from Odyssey, indicate that you want to put back into the Odyssey community.  You are in a leadership position out there at the moment and, as part of the leaving phase of the Odyssey program, you intend to attempt to get qualifications as a drug counsellor.

[5] Exhibit 3 on the Plea.

23Now, your commendable response to the Odyssey program is referred to by Dr Cunningham, whose report was referred to by Ms Anderson.  Significantly, he says that you acknowledge the wrongfulness of your conduct, but also he found that your conduct was not consistent with a mental illness.  He noted your traumatic background and in a sense the fact that your drug use was perpetuated and supported by the drug abuse by your mother and father.

24But he did also opine that:

'In my opinion Mr Caruso's rehabilitative achievements in Odyssey House are some of the most significant I have observed.  Mr Caruso has a leadership role in Odyssey House and is motivated to continue to help others.  Mr Caruso has found the sense of belonging and acceptance he has craved in the structure and support of Odyssey House'.

25So, from an experienced forensic psychologist that is high praise and I must take it into account.

26The progress you have made in Odyssey House for nearly the last 14 months is relevant to your prospects of rehabilitation, which I assess as very good if you can remain on this drug-free path that you have been on for the last 14 months or indeed since the offending, because you have been in custody for the first eight months of it.

27Turning to sentencing issues, which are canvassed in both the prosecution submission and your defence submission, in sentencing you I am required to balance the interests of the community in punishing offenders, general deterrence, specific deterrence, denunciation and rehabilitation into the community.  Here in this case both the prosecution and your counsel submitted that the purposes of sentencing could be achieved by a sentence that did not require you to go back into prison. 

28Ms Burnett submitted that in sentencing for this offending, general deterrence is very important, as is denunciation.  Police and emergency workers are entitled to go about their duties defending the community without offenders such as you seeking to evade them and put them at risk.  The community is sick and tired of the type of conduct you engaged in on that day and your conduct must be utterly denounced. 

29The sentence of the court has got to send a signal that the community just will not tolerate this type of drug-affected evasion, offenders not taking responsibility for their conduct when they are sought to be apprehended when they are involved in stolen cars and evading police arrest.  It is for that reason that the Parliament has said that this is a category A offence, which means that a sentence of imprisonment must be imposed upon conviction of this offence rather than a combination sentence.

30But having regard to those matters, the countervailing consideration is the importance of rehabilitation.  Too often the courts see men like you, youngish men like you in their 20s who to date have been able to lead successful, law-abiding lives, fall into the use of addictive drugs, particularly ice.  When that happens, particularly a first offender in a sense of serious offending that is drug-driven, it is in the community interest that they be reclaimed from the drug addiction.

31That is why Odyssey House in this case and in general with their well-known program, is a major player in seeking to retrieve drug addicts, putting them back into the community.  In your case you have responded well to the Odyssey program and the involvement of Odyssey in bringing you back into the community must be acknowledged.  And I certainly acknowledge their very important role in general and in your particular case.

32In sentencing you I must take into account the maximum penalty, which, as I said, is 10 years' imprisonment, and current sentencing practices.  Ms Burnett referred me to a number of cases, each case is not a precedent but it is relevant to work out the yardstick, and the sentences on the cases that she has referred to go from 12 months to three and a half years' imprisonment for this particular offence.  But obviously the circumstances of the offending vary widely, I have taken them into account.  I have also got to take into account your personal circumstances, which I discussed earlier, and synthesise them in determining what is the appropriate sentencing here.

33So, in this case the prosecutor in a helpful submission put that the time that you have served would serve all the interests of the community in relation to Charge 1 on the presentment, the indictable charge.  Your counsel urged me to the same submission and I accept the submission.  It would not be in the community interest to throw you back in gaol given all the work that has been invested in you by Odyssey House and your own attempt to get off drugs.

34The road is long, but the court in appropriate cases has got to encourage offenders who have taken the initiative, who are on the road to reclamation from drug addiction, to continue that.  So on that basis I have accepted the submission of your counsel that the appropriate disposition should be a sentence of imprisonment measured by the time that you served on Charge 1 and then, in order to facilitate your continued progress at Odyssey House as you move to the leave phase of the Odyssey program, a Community Corrections Order so that you can be under court-ordered supervision during the period of this leave program in order to - as your counsel pointed out, it is this transition from almost a custodial environment or institutional environment of Odyssey House or even prison, it is when people are freed into the community that they are most at risk of recidivation.

35So, a Community Corrections Order that I have had you assessed for and you have been found suitable, where you are under supervision and the Office of Corrections can monitor your drug use and your participation in the Odyssey program in conjunction with Odyssey, will be in the community's interest.

36In sentencing you the learned prosecutor noted that where an offence has occurred under the influence of drugs then it is available to the court to order that that be entered in the records or make a declaration to that effect.  It is clear from the opinion of Dr Odell that in fact this was drug-affected behaviour, and so therefore I will make a declaration that the Charge 1 was committed under the influence of drugs.

37So, could you please stand.

38The sentence of the court is that on Charge 1 you are convicted and sentenced to 238 days' imprisonment.  I declare that the offence has been committed under the influence of drugs and order that that be entered into the records of the court.  I order that all licences you hold be cancelled and that you be disqualified for a period of two years.  I declare that you have served 238 days' imprisonment.

39In relation to the summary charge of driving whilst disqualified you are convicted and ordered to serve a Community Corrections Order for a period of eight months.  This order commences today and concludes at the end of eight months.  The conditions of the order, you have signed it, are the usual conditions:  that you be under supervision, that you advise them of your changes of address and that you attend the South Morang Community Corrections Centre within two clear days by making a phone call to them, be under supervision and that includes them directing you and monitoring your participation in Odyssey House and assessment and treatment for drug abuse.

40In the event that you commit a further offence while on the Community Corrections Order in the next eight months, the offence carries a gaol term.  That carries a three-month sentence of imprisonment and breaches the Community Corrections Order.

41On the third charge, of driving whilst under the influence of drugs within a three-hour period, you are convicted and fined $400 for that offence and your licence is cancelled and you are disqualified for a period of six months on that offence, a mandatory disqualification period.  That is concurrent with the mandatory disqualification period on Charge 1.

42I declare that had you not pleaded guilty I would have imposed a total effective sentence of two years' imprisonment with a non-parole period of 16 months.  Does that cover everything, Ms Burnett?

43MS BURNETT:  Yes, I think so, Your Honour.  Thank you, Your Honour.

44HIS HONOUR:  I want to thank counsel and I'm sure Ms Anderson has explained.  You're already on a Community Corrections Order, or you were on it at the time.  You've got to face the music for that.  So, you know what your obligations are under a Community Corrections Order and you know what your obligations are when you're out there at Odyssey House. 

45I've been assisted in this plea by the comprehensive submissions by Ms Anderson and the submissions by Ms Burnett, which I've exhibited, and placed them on the file, so I want to thank them for that assistance and for the assessment that was done in a speedy manner by the Office of Corrections.  I'll have these reasons typed up and sent to the parties within seven days and you'll be given a copy of the Community Corrections Order afterwards. 

46Again, I ask Ms Anderson to just confirm that Mr Caruso knows what his obligations are under the order.  Take a copy and give it to him.  All right, I want to thank both counsel again and adjourn the court sine die.

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