Director of Public Prosecutions v Churcher
[2021] VCC 879
•30 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01250
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL DOUGLAS CHURCHER |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 June 2021 | |
DATE OF SENTENCE: | 30 June 2021 | |
CASE MAY BE CITED AS: | DPP v Churcher | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 879 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Common law assault – Resist emergency worker on duty – Possess drug of dependence – Remorse – Relevant criminal history – Positive rehabilitation since offending – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 s 31(1)(b); Drugs Poisons and Controlled Substances Act 1981 s 73; Road Safety Act 1986 ss 18(1)(a), 49(1)(bb), 64(1); Firearms Act 1996 s 124(1); Bail Act 1977 s 30B; Sentencing Act 1991 ss 6AAA, 18, 44.
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: Imprisonment for a period of 7 months together with a Community Correction Order with conditions for a period of 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms P Thorp | Office of Public Prosecutions |
| For the Accused | Mr J Desmond | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1Paul Douglas Churcher, you have pleaded guilty to:
· one charge of common law assault contrary to the common law, which carries a maximum penalty of 5 years imprisonment (Charge 1);
· one charge of resist emergency worker on duty contrary to s 31(1)(b) of the Crimes Act 1958, a rolled-up charge, which carries a maximum penalty of 5 years imprisonment (Charge 2); and
· one charge of possess drug of dependence contrary to s 73 of the Drugs Poisons and Controlled Substances Act 1981 which carries a maximum penalty of 1 year imprisonment or 30 penalty units where the court is satisfied the offence was not committed for any purpose relating to trafficking, which is the prosecution position in this instance (Charge 3).
2You have also pleaded guilty to the following related summary offences:
· driving at a speed dangerous to the public contrary to s 64(1) of the Road Safety Act 1986 which carries a maximum penalty of 2 years imprisonment or 240 penalty units (Summary Charge 2);
· unlicenced driving contrary to s 18(1)(a) of the Road Safety Act 1986 which carries a maximum penalty of 6 months imprisonment or 60 penalty units (Summary Charge 4);
· possession of cartridge ammunition without excuse contrary to s 124(1) of the Firearms Act 1996 which carries a maximum penalty of 40 penalty units (Summary Charge 24);
· committing an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977 which carries a maximum penalty of 3 months imprisonment or 30 penalty units (Summary Charge 25); and
· exceeding the prescribed concentration of drugs while driving a motor vehicle contrary to s 49(1)(bb) of the Road Safety Act 1986 which in this instance carries a maximum penalty of 120 penalty units (Summary Charge 26).
3You have also admitted your prior Criminal Record.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5On Friday 8 May 2020 at approximately 11.46 pm, you drove a motorcycle in tandem with another unknown person riding a motorcycle, along the Mornington Peninsula Freeway in the Patterson Lakes area. The speed limit on the freeway is 100 km/h.
6You and the unknown rider overtook three unmarked police vehicles that were travelling in a convoy. One of these police vehicles was a Holden Colorado, driven by Detective Sergeant Lamb with Detective Senior Constable Jeffrey as a passenger. Detective Senior Constable Jeffrey observed you and the other rider drive past them at a fast rate of speed and pass several vehicles. Detective Sergeant Lamb observed you and the other rider drive past at an estimated speed of 150 km/h to 200 km/h.
7The second police vehicle contained Senior Constable Garrett and Senior Constable Woolnough. Senior Constable Garrett observed you and the other rider overtake the police vehicles at an excessive speed. He observed you and the other rider both accelerate to 160 km/h overtaking vehicles on the freeway. Senior Constable Woolnough observed you and the other rider overtake the police vehicle at a fast rate of speed which was well in excess of the speed limit.
8The third police vehicle contained Senior Constable Fidler and Senior Constable Allie. Senior Constable Fidler observed you and the other rider drive past his vehicle in excess of 150 km/h. He sped up to check the registration of the motorbike and his speedometer indicated that the motorbikes were travelling at 150 km/h. The motorcycles gained further distance from them. He observed you and the other rider overtake 10 vehicles on the freeway at a fast rate of speed. Senior Constable Allie observed you and the other rider drive past them in excess of 140 km/h. They attempted to catch up, but you and the other rider were travelling in excess of 150 km/h. It is these facts that relate to Summary Charge 2, drive at speed dangerous.
9Detective Senior Constable Jeffrey did not lose sight of you and the other rider and observed you both exit the freeway at the Thames Promenade exit in Chelsea. Detective Senior Constable Jeffrey and Acting Sergeant Lamb drove over the exit and observed you at the roundabout at the Thames Road intersection. Detective Senior Constable Jeffrey and Acting Sergeant Lamb exited the Mornington Peninsular Link Freeway and turned west onto Springvale Road and observed both motorcycles slowly coming to a stop on Wells Road facing north at a red traffic light.
10You moved into the left turning lane to face westbound into Edithvale Road/Springvale Road and stopped. Acting Sergeant Lamb drove the unmarked police vehicle toward you and stopped adjacent to your motorcycle with the front wheel facing the front passenger quarter panel where the wheel was. This position was just in front of Detective Senior Constable Jeffrey’s position in the front passenger seat. The police lights and siren were not activated at this time.
11At this point you were approximately 2 to 3 meters away from Detective Senior Constable Jeffrey. The motorcycle was positioned perpendicular to the police vehicle and facing directly at the police vehicle.
12Detective Senior Constable Jeffrey was dressed in a suit and was wearing a Victoria Police issue Integrated Operations Equipment Vest which had a police reflective logo on the upper left panel of the police vest over the top of his suit. The logo was in line with the passenger side window of the vehicle. He was also wearing a police identification lanyard around his neck and an equipment belt around his waist that held OC spray, baton, handcuffs and a firearm.
13Detective Senior Constable Garrett observed the police vehicle that was being driven by Acting Sergeant Lamb proceed into the intersection and pull up in front of the two motorbikes as they were stationary at the intersection. Detective Senior Constable Garrett moved his police vehicle into the intersection behind the Colorado and activated the red and blue emergency lights on the police vehicle.
14Detective Senior Constable Jeffrey opened the front passenger door with his right hand which caused the interior lights of the car to turn on and placed his left foot onto the ground. He stood up out of the police vehicle with his right foot still on the sidestep of the vehicle and his right hand on top of the door jam. Detective Senior Constable Jeffrey yelled ‘Police! Don’t move!’ and pointed the finger of his left hand directly at your face as he said this.
15You revved the engine, which made a high-pitched squeal and drove directly at the police car. Detective Senior Constable Jeffrey pulled himself back into the car and you hit the police car with the motorcycle. The motorcycle bounced off the sidestep of the police vehicle which made a loud bang. It is these facts that relate to Charge 1, common law assault.
16You rolled the motorcycle back slightly and Detective Senior Constable Jeffrey pulled the door of the police car partially shut.
17Detective Senior Constable Jeffrey kicked the door so that it swung back towards the motorcycle. You turned the bike toward Springvale Road and stumbled with the motorcycle. Detective Senior Constable Jeffrey jumped out of the police car and tackled you off the motorcycle and the bike fell to the ground. You fought against Detective Senior Constable Jeffrey, turned your face toward him and lashed out at him with your arms. You thrashed around violently, and Detective Senior Constable Jeffrey grappled with you against the motorcycle that was now on the ground. You tried to strike Detective Senior Constable Jeffrey with your fists and struggled to escape.
18Acting Sergeant Lamb got out of the police vehicle and secured your lower half as Detective Senior Constable Jeffrey was unable to gain control of you by himself. You attempted to kick Detective Senior Constable Jeffrey away from you and he struck you with a police baton on the legs. Senior Constable Fidler knelt down on your lower legs to gain control of your legs and to stop you kicking. Detective Senior Constables Jeffrey, Allie and Garrett continued to struggle with you in order to restrain you and place your hands behind your back to enable Senior Constable Fidler to place handcuffs on your wrists and arrest you. It is these facts that relate to Charge 2, resist emergency worker on duty.
19At the time of the common law assault, you were not aware that the police car was a police vehicle and did not know or believe that the person exiting the police car was a police officer. You believed you were about to be attacked by an unknown person coming out of the car. You drove the motorcycle towards the police car at minimum speed while revving the engine and attempted to keep the front passenger door of the police car from opening. You intended to cause fear to the person inside the car. However, you did not make any contact with Detective Senior Constable Jeffrey and he did not receive any injuries.
20After you were arrested, Senior Constable Allie searched you and located a camera bag that contained methylamphetamines, a small plastic tube that contained 1,4-Butanediol and a plunger. It is these facts that relate to Charge 3, possess drug of dependence.
21The police vehicle driven by Acting Sergeant Lamb sustained very minor damage to the passenger side door as a result of the incident.
22Acting Sergeant Lamb examined the motorcycle that had been ridden by you and observed that it was a Suzuki GSXR and he noted the registration and VIN identification.
23You were not licenced to ride a motorcycle at this time which gives rise to Summary Charge 4, unlicensed driving.
24You were taken by ambulance to the Frankston Hospital where you were medically assessed and not admitted to the hospital. At the hospital you were given a blood test which showed that you had methylamphetamine and MDMA in your blood stream. At the hospital you stated in the presence of Detective Senior Constable Garrett, ‘I’m sorry about what happened, I panicked and tried to get away.’ It is these facts that relate to Summary Charge 26, exceed prescribed concentration of drugs while driving a motor vehicle.
25You were taken to the Frankston Police station and interviewed at 6.55 am by Senior Constables Fidler and Allie. The prosecution opening provides a summary of the record of interview which I will not reproduce in these reasons however you maintained in the interview that you did not believe that the people who had intercepted you were police. You stated that if you knew they were police, you would have got off the bike and turned it off.
26On 9 May 2020, your bedroom at 123 Maxwell Street, Mornington was searched by Detective Senior Constable Garrett and three rounds of ammunition were found in your bedside drawer. It is these facts that relate to Summary Charge 24, possess ammunition without excuse.
27At the time of this offending you were on bail for other matters, having been bailed from the Mornington Peninsula Police Station on 20 December 2019 to appear at the Frankston Magistrates’ Court on 18 June 2020.
Nature and gravity of the offending
28The original trial indictment in this matter contained a number of other charges including the more serious charge of intentional exposure of an emergency worker to risk by driving. Following a contested committal and a case conference before me, the prosecution accepted the position that in all the circumstances you did not know or believe that the person in the police vehicle, and the victim of Charge 1 on the plea indictment, was a police officer. As such the charge that was to be contested at trial was settled on the basis of common law assault. While the victim was not injured, it is clear that you intended to prevent him from exiting his vehicle by driving directly at the door in circumstances where the victim had one foot on the ground out of the car. However, in all the circumstances while the victim was undoubtedly fearful of being injured, no injury was sustained.
29Charge 2 is a rolled-up charge and represents your conduct in violently resisting five police officers as they attempted to restrain you. The evidence variously describes you as lashing out with your arms, attempting to strike a police officer and kicking out with your legs requiring the police to use batons to restrain you.
30While Charge 2 also did not result in any police officer being injured, in my view your conduct represents a relatively serious example of resisting police. By the time you were on the ground you were at the very least reckless to the fact that the five officers attempting to restrain you were in fact police and you continued to violently resist.
31The interception was initiated as a result of you riding at a dangerous speed on the freeway, in excess of 150 km/h, while you had methylamphetamine and MDMA in your system. You were unlicensed to ride a motorcycle. Again, no member of the public was injured, however the combination of circumstances demonstrate that you had little regard for the law or the safety of the public at that time.
32As to Charge 3, the drugs found on you were not in your possession for the purposes of trafficking however they, together with the fact that you had drugs in your system at the time, provide further evidence of your ongoing battle with addiction at the time.
33In my view, Summary Charge 2, driving at a dangerous speed is a serious example of that offence. Mr Desmond, who appeared on your behalf pointed out that there was no accident and the traffic at the time was minimal. Nonetheless, your speed was in excess of 150 km/h and while you may be an experienced rider, you had drugs in your system and put yourself and the public at risk.
34Your offending is exacerbated by the fact that you were on bail at the time.
Personal Circumstances
35You are now 44 years of age. You were born in Melbourne and raised on the Mornington Peninsula with your younger sister and mother. Your father left the family when you were two years of age and you have had no contact with him since. You completed primary and secondary school up to Year 9 on the Mornington Peninsula. Around the age of 15 you began drinking alcohol and using drugs, including cannabis. After leaving school you completed a carpentry apprenticeship and worked in construction. Drugs have continued to be an issue in your life and when you were around 30 you began using amphetamines and other drugs.
36In 2018 you opened a construction company and undertook subcontract work for over a year before you were involved in a motorcycle accident which resulted in you being unable to continue working.
37Around this time you broke up with your partner of five years. Your mental health declined, and your drug use increased.
38In 2020 you attempted to return to work however were unable to due to the pandemic.
39You have an extensive and relevant criminal history which includes assaulting an emergency worker on duty, numerous charges of driving whilst disqualified and driving at dangerous speeds. Other serious offending in your criminal history includes aggravated burglary and injury charges. It is clear that your drug problem is longstanding and is intimately connected to your offending in the past.
40After being remanded on these charges in May 2020, you were released on bail in December 2020 with the condition that you reside at Odyssey House for residential rehabilitation in relation to your drug addiction. This was the first time you had been admitted to residential rehabilitation.
41You successfully completed the treatment program at Odyssey House and on 4 May 2021, I made an order varying the conditions of your bail to allow you to reside at your grandmother’s address in Mornington. You resided with your grandmother and provided care to her as she had suffered multiple brain aneurysms. Sadly, last week your grandmother passed away. You shared a very close relationship with her, and you now live alone however, you have the ongoing support of your family.
42Upon discharge from Odyssey House you have continued your recovery, attending counselling and treatment with Amanda Brown, Senior Clinician at Lamberti & Associates’ Millswyn Clinic. In a letter tendered to the court, Ms Brown states that you have remained drug free which is confirmed by regular urinalysis. You have also secured part time employment as a carpenter.
43Ms Brown notes:
Mr Churcher suffered a prolonged, problematic history of gamma-hydroxybutyrate and methamphetamine use which continued unabated until his most recent incarceration. His prior drug use was so profound that he had only ever been able to achieve sustained abstinence within the custodial setting, and in light of this, his progress in rehabilitative treatment to date is remarkable and should be commended.
Sentencing considerations
44Mr Desmond relied upon a number of mitigating factors. First and foremost is your plea of guilty. While you ran a contested committal, there were factual disputes that required clarification and following a case conference before me, the matter was sensibly settled. In the circumstances therefore I accept that your plea has been entered at the earliest reasonable opportunity. Further, your plea of guilty has saved the court the time and expense of a trial and most significantly, in the current circumstances that have resulted from the COVID-19 pandemic, your plea has substantial utilitarian value which has been recently confirmed by the Court of Appeal in Worboyes v The Queen[1] where the Court stated:
[A] plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.[2]
[1] [2021] VSCA 169.
[2] Ibid at [39].
45Following your arrest, you were taken to Frankston Hospital for assessment and a blood test. While there you noted to a police officer that you were ‘sorry about what happened, I panicked and tried to get away’. It is clear to me that while awaiting the resolution of this matter, you have demonstrated that you have a better appreciation of the connection between your long-term drug addiction and your erratic and criminal behaviour and you have accepted responsibility for your conduct. In the circumstances I accept that you have demonstrated a degree of genuine remorse.
46Given your long term drug problem and your extensive history, your prospects of rehabilitation can only be assessed as uncertain. However, since you have been on bail for this matter you have shown a commitment to remaining drug free by participating in a residential drug treatment facility which you have followed up with regular drug counselling in the community. You have family support and you have also secured some employment. Therefore, in my view, while you will face difficulties as you progress through your rehabilitation, if you can maintain the course you are on then your prospects can be assessed positively.
47Ms Thorp who appeared on behalf of the Director of Public Prosecutions submitted that deterrence both general and specific are prominent sentencing considerations which is undoubtedly correct. You have an extensive criminal history and have been given numerous opportunities in the past. You must expect to receive terms of imprisonment if you are tempted to offend in this manner again. Community protection and denunciation of your conduct are also relevant sentencing considerations in this instance.
48You were on remand for 216 days before being granted bail to Odyssey House. That period of remand from May to December 2020 was completed during the COVID-19 pandemic and the associated restrictions that were placed on prisoners. As such I take into account that your period on remand was more burdensome than when restrictions were not in place.
49Mr Desmond submitted that in all the circumstances the 216 days you have served adequately meets the applicable sentencing considerations in this instance. As you have, on your own volition, engaged in significant and ongoing drug rehabilitation and have a number of supports in the community, I agree that any further time in custody would disrupt your positive progress. However both you and the community would benefit from a further period of supervised rehabilitation in the community and as such in my view, a combination sentence pursuant to s 44 of the Sentencing Act 1991 is the most appropriate disposition that is able to meet all of the relevant sentencing considerations. I had you assessed for such an order and you have been found suitable.
Sentence
50Mr Churcher, please stand.
51Paul Douglas Churcher, on Charge 1, common law assault, you are convicted and sentenced to 3 months imprisonment. On Charge 2, resist emergency worker on duty, you are convicted and sentenced to 5 months imprisonment. On Charge 3, possess drug of dependence, you are convicted and sentenced to 1 month imprisonment.
52On Summary Charge 2, driving at a dangerous speed, you are convicted and sentenced to 3 months imprisonment. On Summary Charge 4, unlicenced driving, Summary Charge 26, exceeding the prescribed concentration of drugs while driving, and Summary Charge 24, possess cartridge ammunition, you are convicted and sentenced to an aggregate fine of $1,000. On Summary Charge 25, commit an indictable offence whilst on bail, you are convicted and sentenced to 1 month imprisonment.
53I direct that 1 month of the sentence on Charge 1 and 1 month of the sentence on Summary Charge 2 be cumulative on each other and on the sentence imposed on Charge 2 on the indictment making for a total effective sentence of 7 months imprisonment as the prison component of the sentence pursuant to s 44 of the Sentencing Act 1991.
54As you have completed the prison component of the s 44 order, you will now be placed on a community correction order with conviction for a period of 12 months. The order is a therapeutic order and is constructed in such way to enable you to engage in further treatment and rehabilitation to address your drug use and to maintain a level of supervision in the community as you continue your rehabilitation.
55Pursuant to s 18 of the Sentencing Act1991, I declare that 216 days be reckoned as the period of imprisonment already served under the sentence I have imposed.
56Pursuant to s 6AAA of the Sentencing Act1991, if not for your pleas of guilty I would have sentenced you to a period of 20 months imprisonment with a non-parole period of 12 months.
57In relation to Summary Charge 2, as the speed you were you were driving at exceeded 45 km/h over the limit, any licence you hold is cancelled and you are disqualified from obtaining a licence for 12 months. In relation to Summary Charge 26, your licence is disqualified for a period of 6 months. Both disqualification periods are concurrent, commencing today.
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