Director of Public Prosecutions v Cavanagh-Reed
[2025] VCC 58
•5 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01481
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDEN CAVANAGH-REED |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2024 & 5 February 2025 | |
DATE OF SENTENCE: | 5 February 2025 | |
CASE MAY BE CITED AS: | DPP v Cavanagh-Reed | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 58 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentencing
Catchwords: Plea of guilty – theft of motor vehicle, dangerous driving while pursued by police, aggravated offence of intentionally exposing an emergency worker to risk by driving, failing to render assistance after a motor vehicle accident, possession of a drug of dependence and unlicensed driving – offender, whilst pursued by police, drove onto wrong side of road and into the direct path of a police officer, striking him at speed causing significant injury – Category 1 offence – mandatory minimum non-parole period of 2 years – no special circumstances exist – relevant criminal history – subject to a community correction order at time of offending – youth – general deterrence, denunciation and community protection prominent sentencing considerations
Legislation Cited: Crimes Act 1958; Road Safety Act 1986; Drugs, Poisons and Controlled Substances Act 1981; Control of Weapons Act 1990; Sentencing Act 1991
Cases Cited:Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA 102; Jaeger v The Queen [2020] VSCA 116; DPP v Hill [2012] VSCA 144; Nguyen v The King [2024] VSCA 290; DPP v Baksh-Cowen [2021] VCC 2122; Kehayias v The Queen [2021] VSCA 261; DPP v Smith [2021] VCC 1150; DPP v Jackson [2021] VCC 1659; DPP v Cuschieri [2022] VCC 1716; Hutchison v The Queen [2021] VSCA 235; DPP v Singleton (a pseudonym) [2023] VCC 1484
Sentence: Total effective sentence of five years, eight months’ imprisonment with a non-parole period of three years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | Office of Public Prosecutions |
| For the Accused | Ms S. Stanley | Giorgianni & Liang Lawyers |
HER HONOUR:
1Eden Cavanagh-Reed, you have pleaded guilty to the following offences arising from the events of 22-23 May 2024:
(a) theft of a motor vehicle contrary to s 74 of the Crimes Act 1958 (‘the Act’), the maximum penalty for which is 10 years’ imprisonment;
(b) dangerous driving while pursued by police contrary to s 319AA(1) of the Act, the maximum penalty for which is three years’ imprisonment;
(c) the aggravated offence of intentionally exposing an emergency worker to risk by driving contrary to s 317AD(1)(a) of the Act, the maximum penalty for which is 20 years’ imprisonment;
(d) failing to render assistance after a motor vehicle accident contrary to ss 61(1)(b) and 61(3) of the Road Safety Act 1986, the maximum penalty for which is 10 years’ imprisonment;
(e) possession of a drug of dependence, namely cannabis, contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981, the relevant maximum penalty for which is five penalty units; and
(f) possession of a drug of dependence, namely methylamphetamine, alprazolam, dexamphetamine sulphate and clonazepam, contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981, the relevant maximum penalty for which is one years’ imprisonment or 30 penalty units.
2You have also pleaded guilty to the following summary offences:
(a) unlicensed driving contrary to s 18 of the Road Safety Act 1986, the maximum penalty for which is not more than six months’ imprisonment or 60 penalty units;
(b) possession of a controlled weapon, namely a knife, without a lawful excuse contrary to s 6(1) of the Control of Weapons Act 1990, the maximum penalty for which is one years’ imprisonment or 120 penalty units;
(c) possession of a dangerous article, namely a homemade knife, without lawful excuse contrary to s 7(1) of the Control of Weapons Act 1990, the maximum penalty for which is 60 penalty units; and
(d) possession of a Schedule 4 poison, namely Stilnox and Lyrica, contrary to s 36B(2) of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty for which is 10 penalty units.
3You were born in March 2004 and were 20 years old at the time of this offending. You have a prior criminal record, which you have admitted.
Circumstances of offending
4The circumstances of your offending are detailed in the Summary of Prosecution Opening on Plea dated 7 November 2024, which is the agreed basis upon which you are to be sentenced. I have also viewed the CCTV footage of the incident.
5On Wednesday 22 May 2024, the owner of a white 2012 Honda Civic hatchback, parked his car in Ringwood East at 6.00 pm. The owner used the car as an Uber ride share vehicle. The keys were attached to a lockbox secured to a window for Uber customers to access. The vehicle was also fitted with a GPS tracking system that recorded all movements of the car, including its speed and location.
6At 11.31 pm on 22 May 2024, you forced entry into the lockbox of the Honda Civic and stole the car (Charge 1 – theft of a motor vehicle). In the hours that followed the theft, you collected a 32-year-old male, Jamie Mawby from an unknown location and drove around the eastern suburbs, often at high speeds, stopping briefly at an unknown address in Ringwood East.
7At 1.45 am on Thursday 23 May 2024, you drove into a Shell petrol station in Canterbury Road, Vermont. Mr Mawby got out of the car to fill it with petrol. You drove away from the petrol station having made no attempt to pay for the fuel.[1]
[1]Uncharged act.
8At 1.50 am, the owner of the Honda Civic received a message on his mobile phone that his car was being driven without an Uber share ride booking. He tracked the movement of the car to the Burvale Hotel, on the corner of Springvale Road and Burwood Highway, Nunawading and notified the police.
9CCTV footage captured you and Mr Mawby entering the Burvale Hotel at 2.17 am, where you remained in the gaming room for approximately 32 minutes. You were observed drinking alcohol, smoking and playing poker machines.
10The police attended the hotel at 2.20 am and saw the Honda Civic parked outside the hotel. Additional police units were called to the area to assist in recovering the stolen vehicle.
11At 2.49 am, the police observed you leave the hotel and walk towards the car. Mr Mawby also left briefly, but then turned and walked back into the hotel. He had no further involvement in the offending.
12You entered the stolen Honda Civic alone and began to drive out of the car park towards the Burwood Highway exit. However, when one of the nearby police units activated the flashing lights on their vehicle, you accelerated away.
13At that time, the roads were wet and visibility was by street and vehicle lights only.
14You drove behind the rear of the adjacent Dan Murphy’s store, using their loading bay, before driving across the embankment and footpath to access the east bound lanes of Burwood Highway, on the wrong side of the road. You then drove onto the slip lane of Springvale Road, also against the flow of traffic.
15Continuing on the wrong side of the road, you turned right into Springvale Road, travelling northbound.
16The victim, Senior Constable Luke Kingston was setting up tyre deflation devices, or ‘stop sticks’, on the eastern side of Springvale Road. The stop sticks were being placed northbound, ahead of your vehicle, where another police unit was positioned. However, to avoid the stop sticks and the other police unit, you then drove over the centre grass median strip onto the correct side of the Springvale Road and continued driving. The manner of your driving to evade police up until this point in time is the subject of Charge 2 – dangerous driving while pursued by police.
17Once you reached the median centre turn lane, you returned to the wrong side of the road. This placed Senior Constable Kingston, who was standing in the centre of the southbound lanes, in the direct path of your oncoming vehicle. Senior Constable Kingston attempted to run towards the safety of the centre median strip but did not reach it before you struck him at speed. The police witnesses did not see you brake or make any attempt to drive around the victim before he was hit. This conduct is the subject of Charge 3 – the aggravated offence of intentionally exposing an emergency worker to risk by driving.
18The force of the impact resulted in Senior Constable Kingston becoming airborne, striking the bonnet, the windscreen and then the roof of the vehicle, before falling onto the bitumen road.
19The collision caused damage to the bonnet and roof, and smashed the vehicle’s windscreen. However, you made no attempt to stop and provide assistance to Senior Constable Kingston. By your guilty plea to Charge 4 – failing to render assistance after a motor vehicle accident, you accept that you knew or ought reasonably to have known that the collision had caused the victim to suffer a serious injury. Instead of stopping, you continued to drove northbound on the wrong side of Springvale Road, while other police members present at the scene rushed to assist Senior Constable Kingston, who lay seriously injured on the ground.
20An ambulance arrived shortly after and Senior Constable Kingston was taken to hospital, having been assessed with a significant injury to his left shoulder and right hip. He underwent a number of surgeries in the following weeks to repair an anterior dislocation of his left shoulder and a shearing injury to his hip.
21Investigators subsequently analysed the GPS data for the stolen vehicle which revealed that following the collision, you continued to drive north on Springvale Road, before entering Jolimont Road on the eastern side. Although the applicable speed limits for those roads were between 50-80 kilometres per hour, you were recorded as driving at speeds of between 112.9 and 127.3 kilometres per hour.
22You were unlicensed at the time of these events. VicRoads records indicate that you have never held a Victorian Driver’s licence (summary Charge 16 – unlicensed driving).
23At 2.57 am, you abandoned the stolen Honda Civic in Tucker Road, Vermont and fled on foot through Vermont Secondary College, removing your black and white ‘Ecko’ brand track pants as you ran. The track pants were later located by police and seized. CCTV footage from the school shows you exiting onto Devlin Street, but police were unable to locate you.
24Police arrested Mr Mawby at the Burvale Hotel at 3.00 am. When questioned by police, Mr Mawby named you as the driver of the stolen vehicle.
25At 6.53 am, the police located the stolen Honda Civic in Tucker Road, Vermont, and towed the vehicle for forensic examination.
26You were located in Ringwood at 3.53 pm that day and, following a brief pursuit on foot, you were arrested by police. When you were searched, the police found you in possession of a small amount of cannabis (Charge 5 – possession of a drug of dependence), methylamphetamine, alprazolam, Dex amphetamine-Sulphate and Clonazepam (Charge 6 - possession of a drug of dependence) and Lyrica and Stilnox Zolpidem (summary Charge 28 – possession of a Schedule 4 poison).
27You were also found in possession of a fold-out knife (summary Charge 19 – possess controlled weapon without excuse) and a sharp metal implement with a red taped handle, being a handmade knife (summary Charge 20 – possess a dangerous article).
28You were initially unfit to be interviewed, and were left to rest. When you were interviewed by police sometime later, you mainly declined to answer questions in accordance with your rights. However, when the police detailed the allegations against you, you disputed their version of events, stating that Senior Constable Kingston ran towards your stolen car, and that you were only attempting to flee the area. You said it was not your intention to collide with the victim.
Nature and gravity of offending
29There are a number of features that make your offending extremely serious. In order to evade police, you drove the Honda Civic – a vehicle you had stolen – dangerously and erratically on a road that was wet, and at a time when visibility was poor. During the course of the police pursuit, you repeatedly drove onto the wrong side of the road.
30You were unlicensed to drive; having never held a licence.
31Your offending on this night culminated in your act of returning onto the wrong side of the road, again to avoid police, into the direct path of Senior Constable Kingston. Without taking any steps to avert a collision, such as breaking or steering to avoid him, you drove directly at Senior Constable Kingston. You struck him with sufficient force that Senior Constable Kingston became airborne, hitting the front bonnet, windscreen and roof of the vehicle before landing on the road, seriously injured. I consider this to be a particularly serious example of the aggravated offence of intentionally exposing an emergency worker to risk by your manner of driving. The risks inherent in driving onto the wrong side of the road where a police member was positioned are self-evident. That risk materialised when you struck Senior Constable Kingston, causing him significant injury.
32Senior Constable Kingston was doing no more than performing his sworn duty to protect the community, setting up tyre deflation sticks to safely end the pursuit and secure the stolen vehicle before he was hit by you travelling at speed. You must have been aware you had struck Senior Constable Kingston, given the force of the collision resulted in him striking the front bonnet and windscreen of the car. Appallingly, you made no attempt to stop and render any assistance to him, even though you ought to have been aware he was seriously injured. Rather, you sped away from the scene, travelling well in excess of the speed limit as you did so. Fortunately, others were able to render him immediate assistance.
33For no better reason, it seems, than to avoid arrest whilst driving a stolen car, unlicensed, you demonstrated a complete disregard for the safety of others on the road, and in particular, the police who attended on that night. Senior Constable Kingston, being on foot, was particularly vulnerable in the face of your erratic driving. Your driving was highly dangerous, and it is only a matter of luck that Senior Constable Kingston did not suffer more significant injuries or worse. Your moral culpability for your offending is significant.
34For Senior Constable Kingston, the impact of your offending has been profound; impacting on many aspects of his life. This is borne out by his eloquent victim impact statement.
35Senior Constable Kingston says that working as a police officer was his ‘dream job’, which he now fears he will be unable to return to: a possibility he says ‘absolutely destroys me’.[2] Senior Constable Kingston describes the surgery required to repair his fractured shoulder and the ‘excruciating pain’ caused by his injury, requiring ongoing physiotherapy. He says he has only recovered about 50% of movement in his shoulder so far, impacting on his ability to play sport and undertake other activities, including household chores and parental obligations.
[2] Exhibit 2 – Victim Impact Statement of SC Kingston
36But it is the mental trauma caused by your offending that is the main focus of the victim’s statement. He has since been diagnosed with a post-traumatic stress disorder, and says he struggles with these symptoms on a near-daily basis, including experiencing anxiety attacks if anything triggers a memory of the events of that evening, such as an engine revving. His treating psychologist, Janelle Tulloch wrote a report that was provided on your plea, in which she states that Senior Constable Kingston remains ‘highly stressed and anxious, overwhelmed and in similar circumstances, hypervigilant’ with difficulty concentrating.
37Senior Constable Kingston also speaks of the ramifications of your offending on his relationships, with friends, work colleagues and his fiancé, with whom he had a three-month-old daughter at the time of the collision. He says the shoulder injury prevented him from being able to assist with parenting duties, which left him feeling guilty and unable to enjoy precious bonding time with his child.
38Senior Constable Kingston concludes his victim impact statement by saying that your offending has ‘completely upturned my life and made every-day living extremely challenging’.
39Mr Cavanagh-Reed, you can be in no doubt that your actions that night have caused significant pain, disruption and emotional trauma to Senior Constable Kingston. I have taken the impact of your offending on the victim into account in sentencing you.
Personal circumstances
40I turn now to your personal circumstances, much of which is detailed in the psychological report of Dr Ahona Guha, Senior Clinical and Forensic Psychologist with Forensicare dated 22 January 2025.[3]
[3]Exhibit 1 – Psychological Report of Dr A Guha, Forensicare dated 22 January 2025
41You were only 20 years old at the time of the offending, and are soon to turn 21.
42Your early life was a difficult one. You were born in Victoria, but your parents separated before you were born. You report that your father was violent, abused drugs, and was involved in the criminal justice system. Other than supervised visits with him until the age of two, your father had little involvement in your upbringing. You have only had limited contact with your father since turning 18.
43Your mother, who raised you in Bentleigh and then Healesville, had a number of partners as you grew up, most of whom engaged in violence in the home. You report that some were also violent towards you, but that your mother was unable to protect you due to her own difficulties with poor mental health and drug use. You state that on one occasion, your mother’s then partner held a knife to your throat when you were eight or nine years old and would often ‘rough you up’.
44You also state that you were sexually abused at a caravan park when you were very young, but declined to expand upon this further.
45When you were 12, your mother partnered with your stepfather, Klaus. Your relationship with him was strained, and you report being involved in many arguments with Klaus when he was drinking.
46You left home after an argument with your stepfather at the age of 16. By this time you had been expelled from Lilydale High School, and only completed Year 9 without finishing Year 10. You were then living on the streets or couch surfing with friends for two years before you were first placed in custody. An intervention order had prevented you from residing in the family home.
47You were sentenced in the Magistrates’ Court in September 2022 for the offences of making a threat to kill, intentionally causing injury and unlawful assault where your stepfather was the victim. You were then 18 years old, and were sentenced to 123 days’ imprisonment combined with a 24-month community correction order, with a condition that you attend upon Headspace for mental health and other treatment.
48You began drinking alcohol and smoking cannabis at the age of 14. By 15, you had commenced amphetamines and MDMA, progressing to methamphetamine abuse while you were sleeping rough. From the age of 16, you were also abusing Benzodiazepines. Before being remanded on this offending, you were using approximately 17 points of methamphetamine a day, engaging in illegal activity to support your drug use.
49You have never held any form of paid employment and have never engaged in any formal drug treatment programs. However, since being in custody, you have completed a number of programs including a Food Handling Certificate and have worked in the kitchen for a period. Whilst in custody, you are stable on buprenorphine.
50
You have a relatively short but concerning criminal history. On 20 March 2023, you were sentenced to an adjourned undertaking, with conviction, for the offences of possessing cannabis, methylamphetamine and prescription drugs. On
13 November 2023, you were sentenced to five months' imprisonment combined with an 18-month community correction order for the offences of aggravated burglary with a person present, theft, intentionally damage property, theft of a motor vehicle, going equipped to steal, negligently deal with proceeds of crime, possessing a controlled weapon without excuse, handling stolen goods and possessing methylamphetamine and prescription drugs. This offending also contravened the adjourned undertaking imposed in March 2023 and the community correction order imposed in November 2023.
51You have had one significant intimate relationship that lasted five years, however you report that relationship ended in 2023 because your partner became 'fed up' with your behaviour.
Matters in mitigation
52On your behalf, a number of matters were raised in mitigation of your sentence.
53First and foremost, you entered an early guilty plea to these offences. In doing so, you acknowledge responsibility for your offending and have facilitated the course of justice. You entered your guilty plea on 30 August 2024 at an early committal mention, and in doing so, saved the courts and the community the time and resources associated with a trial or a committal hearing. Significantly, you saved the victim, and other police witnesses, from having to give evidence in court. There is remorse inherent in a guilty plea, particularly one entered at the earliest opportunity.
54You are entitled to an appreciable sentencing discount for your early guilty plea.
55The second mitigating factor is that you grew up in extremely disadvantaged circumstances. You had limited contact with your father, due to drug addiction and incarceration, and experienced and were exposed to violence at the hands of your mother’s partners. Due to her own issues, your mother was unable to protect you from these instances of disputation and violence in the home. As a result, you were effectively homeless from the age of 16 and your schooling was cut short.
56Following the plea hearing before me on 29 November 2024, and in the absence of any psychological material, I directed that the plea hearing be adjourned for you to be assessed by a forensic psychologist. You were then assessed by Dr Guha on 30 December 2024. In her report, Dr Guha makes reference to your early childhood difficulties, noting you experienced and witnessed frequent violence in the home. Dr Guha concludes that your exposure to domestic violence and instability in your early years, is likely to have resulted in difficulties with emotional regulation and led to behavioural issues from a young age. Although Dr Guha did not conduct any tests, she states you also report being diagnosed with a low IQ, however, I have no evidence before me that confirms any cognitive deficits.
57The prosecution does not take any issue with the application of the general principles enunciated by the High Court in the case of Bugmy[4], that your disrupted and dysfunctional upbringing operates to moderate your moral culpability to some extent. As the High Court observed, the moral culpability of an offender whose childhood has been marred in this way cannot be equated with that of other offenders without such disadvantage. I have taken this matter into account in further mitigation of your sentence.
[4] Bugmy v The Queen [2013] HCA 37
58Beyond this, Dr Guha did not assess you as presenting with any diagnosed mental illness or disorder. Dr Guha refers to previous diagnoses you have received in the community over time, including Borderline Personality Disorder, PTSD, a paranoid personality disorder, conduct disorder and schizophrenia. However, Dr Guha states she observed no evidence of any psychotic symptoms when she assessed you, noting that you were abstinent from illicit substances at the time of your assessment. Dr Guha states that you present with a range of emotional difficulties, including low mood, suicidal ideation, and impulsivity, but concludes that further assessment is necessary in the community to determine whether these relate to undiagnosed ADHD or otherwise. It is not argued on your behalf that any of the Verdins[5] principles are enlivened and there is no evidentiary basis for me to reach such a conclusion.
[5] R v Verdins [2007] VSCA 102
59
Finally, and significantly, at the age of 20, you are to be sentenced as a young offender. The law recognises that young offenders are more prone to rash,
ill-considered actions and that the rehabilitation of young offenders is a powerful sentencing consideration. Where a young offender is rehabilitated, it benefits not only the offender, but the entire community. Generally, the youth of an offender operates to moderate the sentencing considerations of general deterrence and just punishment.
60However, the serious nature of your offending necessarily reduces the weight to be given to the principles relating to young offenders. Unfortunately, dangerous driving offences are often committed by young people, and general deterrence, whilst moderated, must be meaningful to act as a deterrent to that class of offender.[6] As the Court of Appeal stated in the case of Nguyen v The King, a case involving an offender who drove, unlicensed, onto a footpath to evade police:
Those who seek to drive in a dangerous or reckless manner to escape police, and who thereby place police or other citizens at risk of death or serious injury, need to know that such conduct will not be tolerated, and will be met by stern punishment.[7]
[6]See DPP v Hill [2012] VSCA 144, at [51] although in relation to the offence of culpable driving.
[7] Nguyen v The King [2024] VSCA 290
Other sentencing considerations
61In cases such as these, general deterrence, punishment and denunciation all need to be given prominence as sentencing considerations. Other people must be deterred from dangerous and erratic driving to evade police, particularly where such conduct places police members at risk.
62Parliament has made it a specific offence to expose an emergency worker to risk by driving, with that offence intended to protect the health and safety of police and other emergency workers while undertaking their duties on the roads. As a further indicator of the seriousness of this offence, over and above the maximum penalty of 20 years’ imprisonment, Charge 3 is a category 1 offence where an emergency worker is injured. Pursuant to s 10AE of the Sentencing Act 1991, the court must impose a term of imprisonment and fix a non-parole period of not less than two years, unless special reason exists under s10A of the Act.
63On your behalf, it was conceded that no special reason exists under s 10A and that a term of imprisonment with a non-parole period of no less than two years must be fixed.
64
Having regard to your early guilty plea, your young age and childhood deprivation, Ms Stanley, who appeared on your behalf, submitted that either the minimum
non-parole period with a lower head sentence be imposed; alternatively that a head sentence with a lengthier period where you are subject to supervised parole would best promote your prospects of rehabilitation, given your age. In my view, the latter approach better reflects the objective gravity of your offending, had proper regard to the victim impact, whilst balancing the matters that operate in mitigation of your sentence.
65At the age of 20, a sentence that best promotes your rehabilitation into the future is not only in your interests, but better protects the community. In my view, this can best be achieved by fixing an appropriate non-parole period that facilitates your supervision and treatment over a lengthier period in the community. Ultimately, of course, it will be a matter for the Parole Board to determine whether you are granted parole.
66During your assessment with Dr Guha, you stated that you had used methamphetamine, pills and alcohol on the night of the offence, and decided to steal a car as you were bored. When you became aware of the presence of police, you told Dr Guha that you panicked and tried to get away. Although you informed Dr Guha you are motivated to reduce your substance abuse, you report finding it ‘difficult to envisage a life that does not involve substance use’[8]. Addressing your substance abuse will be critical in reducing the risk of your future offending, which presently Dr Guha assesses as high.
[8] Exhibit 1,[25]
67Dr Guha recommends that you be referred for ‘high intensity’ substance abuse counselling in addition to an addiction medication specialist. The fact you have expressed some motivation to engage in treatment is positive. It is also noteworthy that since being in custody, you have taken the opportunities available to you to engage in some further education, having completed a Certificate II in Hospitality and a foundation OHS course[9]. This is to your credit.
[9] Exhibit 2 – Prisoner Education Summary Report dated 16 December 2024.
68Assessment of your prospects of rehabilitation is not straight forward. On the one hand, you are a young man with much of your life to live. You have a concerning, but relatively limited criminal history, and this is the most serious offending for which you have been sentenced. However, it is relevant to my assessment of your future prospects that a previous sentence of five months’ imprisonment combined with a community corrections order for dishonesty offences, including theft of a motor vehicle, had failed to deter you from this offending.
69The custodial sentence I impose can be expected to have a salutary effect, and will hopefully act as a motivation for you to engage meaningfully in substance abuse and other treatment. However, as assessed by Dr Guha you pose a high risk of future offending if you relapse into substance abuse in the community. For now, I am only able to assess your future prospects as reasonable.
70I am required to have regard to current sentencing practices when sentencing you. The prosecution referred me to the sentences imposed in the cases of Jaeger[10] and Baksh-Cowen[11], which I have reviewed. I have also considered the additional cases referred to in a table of comparable cases helpfully provided on your behalf.[12] Two of the cases to which I was referred warrant some analysis, given the similar nature of the offending and the age (involving youthful, although not young offenders) and their personal circumstances.
[10]Jaeger v The Queen [2020] VSCA 116 (‘Jaeger’)
[11]DPP v Baksh-Cowen [2021] VCC 2122 (‘Baksh-Cowen’)
[12]Kehayias v The Queen [2021] VSCA 261; DPP v Smith [2021] VCC 1150; DPP v Jackson [2021] VCC 1659; DPP v Cuschieri [2022] VCC 1716; Hutchison v The Queen [2021] VSCA 235; DPP v Singleton (a pseudonym) [2023] VCC 1484
71In the case of Jaeger, the offender was 24 years old at the time of the offending. The offending for which he was sentenced involved driving a stolen vehicle across the westbound lanes of the Western Freeway, over a median strip and into the emergency lane, before pulling in front of a police vehicle. The offender drove at high speed to evade police before coming to a stop and then reversing the vehicle at the police car, ramming it with sufficient force so as to cause the airbags to deploy. One of the police officers in the vehicle suffered a muscular ligament strain and the other suffered redness, swelling, minor lacerations and a sore wrist. The offender than sped off and failed to render assistance following the collision. Clearly the injury suffered by Senior Constable Kingston in this case is more serious than the injuries suffered by the police in the case of Jaeger.
72In Jaeger, the offender had also experienced significant childhood trauma and was using drugs and alcohol at the time of the offending. He had a limited prior criminal history. He was sentenced to five years’ imprisonment for the aggravated offence of intentionally exposing an emergency worker to risk by driving, and a total effective sentence of five years, four months’ imprisonment. A non-parole period of three years, one month was fixed. An appeal against sentence was dismissed by the Court of Appeal.
73In the case of Jackson[13], the offender was 21 years old at the time of the offending, which involved driving over a protracted period of two days where two civilian vehicles were hit as a result of the driving conduct and another two crashed when taking evasive action to avoid the offender. A second police vehicle was also narrowly missed and the police threatened with a firearm. The next day, the offender ‘chased’ an unmarked police vehicle, and despite stop sticks being deployed the offender continued to drive erratically, narrowly missing police vehicles twice, before striking another police vehicle, causing damage.
[13] DPP v Jackson [2021] VCC 1659 (‘Jackson’)
74In the case of Jackson, no police were injured, although the offending was more protracted and involved more ‘near misses’ with police vehicles over the course of the two days. The offender, who also had a difficult upbringing and drug abuse issues, with a relevant criminal history, was sentenced to three years’ imprisonment for the aggravated offence of intentionally exposing an emergency worker to risk by driving and a total effective sentence of four years, six months imprisonment with a non-parole period of two years, six months fixed.
75Current sentencing practices may be useful to discern a sentencing range so as to promote consistency in sentencing, but they do not govern or control the sentence to be imposed. Ultimately, each case must turn on its own facts and circumstances.
76Finally, I turn to the question of totality. As highlighted in the submissions made on your behalf, the aggravated offence of exposing an emergency worker to risk arose in the course of your dangerous driving while pursued by police. It was part of a single course of conduct, and whilst serious, the dangerous driving occurred over a relatively brief period. However, the degree of concurrency must take into account the legislative presumption found at s 16(3D) of the Sentencing Act 1991, which requires that every term of imprisonment imposed on a person for an offence against s 317AD be served cumulatively upon the sentences of imprisonment imposed for other offences, unless otherwise directed by the court.
77It is necessary that there be some cumulation of the sentences I have imposed to reflect the separate criminality of your offending. However, I accept the submission made on your behalf that a wholly concurrent sentence would amount to a crushing sentence, particularly having regard to your age. I am conscious that the sentence must reflect the totality of your offending, and no more, whilst having regard to the legislative presumption of cumulation.
Sentence
78Balancing the matters to which I have referred, whilst guided by the maximum penalty for each offence, I sentence you as follows:
79On Charge 1 – theft of a motor vehicle, you are convicted and sentenced to 16 months’ imprisonment.
80On Charge 2 – dangerous driving while pursued by police, you are convicted and sentenced to 10 months’ imprisonment.
81On Charge 3 – the aggravated offence of intentionally exposing an emergency worker to risk by driving, you are convicted and sentenced to five years’ imprisonment. This is the base sentence.
82On Charge 4 – failing to render assistance after a motor vehicle accident, you are convicted and sentenced to 14 months’ imprisonment.
83On Charge 5 – possession of a drug of dependence namely cannabis, you are convicted and discharged.
84On Charge 6 and summary Charge 28 – possession of a drug of dependence/Schedule 4 Poison, you are convicted and fined an aggregate of $400.
85On summary Charge 16 – unlicensed driving, you are convicted and sentenced to 1 months’ imprisonment.
86On summary Charge 19 and summary Charge 20 – possession of a dangerous article in public place, and possession of a controlled weapon without lawful excuse you are convicted and fined an aggregate of $600.
87I make the following orders for cumulation on Charge 3 and upon one another;
(a) 2 months of the sentence imposed on Charge 1;
(b) 3 months of the sentence imposed on Charge 2; and
(c) 3 months of the sentence imposed on Charge 4.
88This gives a total effective sentence of five years, eight months’ imprisonment. I fix a non-parole period of three years. This is the period of imprisonment you must serve before you are eligible for parole.
89Pursuant to s 18 of the Sentencing Act 1991, I declare 258 days of presentence detention as already served under the sentence I have imposed.
90Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty to these offences, the sentence I would otherwise have imposed is a sentence of six years, eight months’ imprisonment with a non-parole period of four years, six months' imprisonment.
91Pursuant to s 89(1)(b) of the Sentencing Act 1991, you are disqualified from driving a motor vehicle for four years from today, and you are disqualified from obtaining a driver’s license during that period.
92Finally, I make the disposal order sought by the prosecution, noting that it is not opposed.
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