Director of Public Prosecutions v Coad
[2022] VCC 249
•4 March 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-21-00401
CR-21-00608
Indictment No. L10320007
Indictment No. L10319997
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL CHARLES COAD |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 August 2021,15 November 2021 and 14 February 2022 | |
DATE OF SENTENCE: | 4 March 2022 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Coad | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 249 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Handling stolen goods – theft – recklessly exposing emergency worker to risk by driving – possess drug of dependence – unlicensed driving – driving within three hours of having drugs in blood – dangerous driving – early plea of guilty – offender of Aboriginal descent – relevant prior convictions – evidence of remorse – prospects of rehabilitation –denunciation – protection of the community – need for criminal record to be specific about prior convictions
Legislation Cited: Crimes Act 1958 (Vic), s88, s74(1), s317AF(1)(a); Sentencing Act 1991 (Vic), s5(2H), s16(3D), s89(2)(b); Criminal Procedure Act 2009 (Vic), s145; Road Safety Act 1986 (Vic), s18(1)(a), s64(1), s64(2), s64A; Drugs, Poisons and Controlled Substances Act 1981 (Vic), s73(1)
Cases Cited:Nelson v The Queen [2020] VSCA 219; Kehayias v The Queen [2021] VSCA 261; Hutchison v The Queen [2021] VSCA 235; Worboyes v The Queen [2021] VSC 169; The Queen v Madex [2020] VSC 145; Brown v The Queen [2020] VSCA 60; R v O’Rourke [1997] 1 VR 246; DPP v Grabovac [1998] 1 VR 664
Sentence: Convicted and sentenced to a total effective sentence of four years and three months’ imprisonment with a non-parole period of two years and six months
Section 6AAA declaration: Conviction and sentenced to a total effective sentence of eight years and six months’ imprisonment with a non-parole period of five years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Brown (Plea) Ms A Dearman (Solicitor) (Sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr M Kozlowski | Papa Hughes Lawyers Pty Ltd |
HER HONOUR:
1Daniel Charles Coad, you are to be sentenced in respect of charges the subject of two indictments and also in respect of summary charges related to each of the indictments.
2You pleaded guilty to all charges the subject of the two indictments when arraigned before me on 12 August 2021, and you pleaded guilty to the related summary charges on 15 November 2021.
Indictment No. L10320007
3You pleaded guilty to all charges the subject of this indictment, namely –
(i) two charges of handling stolen goods (Charge 1 and Charge 3) contrary to s88 of the Crimes Act 1958;
(ii) one charge of theft (Charge 2) contrary to s74(1) of the Crimes Act; and
(iii) one charge of the aggravated offence of recklessly exposing an emergency worker to risk by driving (Charge 4) contrary to s317AF(1)(a) of the Crimes Act 1958.
4The maximum applicable penalties for these charges are –
(i) handling stolen goods – fifteen years’ imprisonment;
(ii) theft – ten years’ imprisonment; and
(iii) aggravated offence of recklessly exposing an emergency worker to risk by driving – ten years’ imprisonment. This offence is a Category 2 offence, meaning that s5(2H) of the Sentencing Act 1991 applies. Unless one of the exceptions set out in that provision applies, the Court must make an order under Division 2 of Part 3, namely impose a term of imprisonment (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with s44). It is not suggested that any statutory exception applies. Section 16(3D) of the Sentencing Act also applies to this offence. That section provides that every term of imprisonment imposed on a person for such an offence –
“… must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.”
Section 89(2)(b) of the Sentencing Act also applies to this offence. That section provides that the Court must disqualify you from driving a motor vehicle on a road in Victoria for the period for which you would have been disqualified from obtaining a driver license or learner permit, had you held one, in this instance, for a period of not less than two years effective from the date specified by the Court.[1]
[1]See also s87P(ba) Sentencing Act definition of “serious motor vehicle offence,” which includes an offence under s317AF(1)(a) of the Crimes Act 1958
Related summary offences
5Upon your plea of guilty to the charges the subject of Indictment No. L10320007, you agreed to have the summary offences related to that indictment transferred to this Court under s145 of the Criminal Procedure Act 2009.[2] You pleaded guilty to those charges, namely –
(i)unlicenced driving contrary to s18(1)(a) of the Road Safety Act 1986 (Charge 3);
(ii)drive in a manner dangerous contrary to s64(1) of the Road Safety Act (Charge 12); and
(iii)drive whilst ought reasonably to have known that had been directed by a police officer to stop contrary to s64A of the Road Safety Act (Charge 24).
[2]See Notice of Related Summary Offences dated 19 October 2021 in CR-21-00608
6The maximum applicable penalties for these charges are:
(i)unlicenced driving – six months’ imprisonment and/or a fine of 60 penalty units;
(ii)drive in a manner dangerous – two years’ imprisonment and/or a fine of 240 penalty units. Under s64(2) of the Road Safety Act, the Court is required to disqualify you from obtaining a driver licence or learner permit for a period of not less than six months, effective from a date to be determined by the Court.
(iii)drive whilst ought reasonably to have known that had been directed by a police officer to stop – for a first offence, 60 penalty units and/or imprisonment for six months, and for a second offence, 120 penalty units and/or imprisonment for twelve months. For a first offence, the mandatory minimum period for which the Court must disqualify you from obtaining a driver’s license or learner’s permit is six months. For a subsequent offence, the mandatory minimum period for which the Court must disqualify you from obtaining a driver’s license or learner’s permit is twelve months.
Circumstances of offending – Indictment No. L10320007 and related summary offences
7The circumstances of offending are well set out in the Summary of Prosecution Opening upon Plea dated 16 June 2021 tendered as exhibit A.
8On behalf of the Prosecution, Mr D Brown of counsel opened the facts in accordance with exhibit A.
Charges 1 and 2 – handling stolen goods and theft
9At approximately 7.00pm on 15 November 2019, Miriam Porter parked her white 2004 Ford Courier Utility vehicle in the driveway of her home in Daylesford. The following day, at approximately 1.00pm, she noticed that her car had been stolen.
10On 22 November 2019, you drove Ms Porter’s stolen vehicle to the house of one of your friends.
11The next day, at about 10.00pm on 23 November 2019, Marcia Horton parked her Mazda utility vehicle at her home in Ballarat Central. Some time overnight you attended at Ms Horton’s address and stole the rear numberplate from her vehicle.
12On 24 November 2019, police located Ms Porter’s stolen vehicle in Ararat. The registration plate that you stole from Ms Horton’s car was attached to Ms Porter’s car. The stolen car was towed to the Ararat Police Station where it was examined forensically. Your fingerprint was located on the outside of the driver’s door.
13The same morning you asked your friend to help you push start the stolen car which you had earlier parked near your friend’s house. At this time, you did not know that police had towed the vehicle away. As you and your friend walked to where you had parked the stolen car, members of police who had earlier recovered the vehicle spoke to you about your knowledge of it. You denied any knowledge of the stolen utility.
Charge 3 – handling stolen goods
14This charge is related to events the subject of Indictment No. L10319997.
15On 18 December 2019, Brenton Harvey hired a 2019 silver Toyota Corolla from the Hertz Mitcham office. That vehicle was stolen while it was in Mr Harvey’s possession
16On 16 January 2020, police contacted the manager at Hertz Mitcham and informed her that the stolen vehicle had been involved in a driving incident in Ararat.
17As shall be explained when I outline the circumstances surrounding the charges the subject of Indictment No. L10319997 and the related summary offences relevant to that indictment, you were seen driving that vehicle and were found to be in possession of it. In fact you had been in possession of it for some time.
Charge 4 – aggravated offence of recklessly exposing an emergency worker to risk by driving
18On 18 January 2020, Senior Constable Kohn was on supervision patrol duties in the Ararat area when he saw the stolen Corolla hire car being driven along Tatyoon Road in Ararat. Senior Constable Kohn covertly followed the stolen Corolla until it turned into Logan Road, a dead-end street. He then activated the lights and siren on the police car.
19You then executed a U-turn and accelerated hard towards Senior Constable Kohn’s vehicle, which forced him to take evasive action to avoid a collision. You also swerved away from the police car at the last second. Your driving risked a collision between the two vehicles and also risked injury to Senior Constable Kohn.
20As you drove past him, Senior Constable Kohn recognised you as the driver of the stolen hire car.
Summary Offence 12 – dangerous driving
21On 21 January 2020, Sergeants Grant and Chatfield were patrolling the Ararat area. At approximately 3.00pm, they thought they saw the stolen Corolla in the Caltex Service Station on the corner of Lambert and Lowe Streets in Ararat. They drove into the service station from the Lowe Street entrance and saw you standing at a petrol bowser filling the tank of the stolen Corolla. There was a female passenger in the front seat of the car.
22After the police car came to a stop, Sergeant Grant got out of the car and yelled out to you “Stop! Police!” You immediately dropped the petrol pump and returned to the driver’s seat of the stolen Corolla. Sergeant Grant ran towards the Corolla and managed to open the driver’s door. You accelerated away at a fast rate of speed, leaving Sergeant Grant no option but to let go of the door. In these circumstances, your driving must be regarded as dangerous.
Summary Offence 24 – drive whilst ought reasonably to have known that had been directed by a police officer to stop[3]
[3]Note that the Summary of Prosecution Opening upon Plea, exhibit A, refers to this as Summary Charge 25, Fail to stop on Request. In fact the Prosecution did not proceed with Charge 25, accepting a plea on Summary Offence 24. Charge 25 was laid under s59(1)(a) of the Road Safety Act, whereas charge 24 was laid under s64A of the Road Safety Act.
23On 28 January 2020, Acting Sergeant McConachy and Senior Constable Kohn were patrolling the Ararat area when at approximately 9.00pm, they saw the stolen Corolla parked in a gravel driveway in some bushland off Henderson Road. The police drove towards the stolen Corolla with their high beam headlights operating. The Corolla was facing towards them. Police recognised you as the driver of the vehicle. Police activated their red and blue flashing lights.
24When the police vehicle was approximately 20 metres away from the Corolla, you drove off and turned into Brewster Street. Police attempted to intercept you, following you for a short distance with their emergency lights flashing. Despite this, you pulled away from the police vehicle at speed. Police abandoned the pursuit once it became evident that you were not going to pull over as requested.
Summary Offence 3 – unlicensed driving
25Between 22 November 2019 and 28 January 2020, you did not hold a Victorian Driver’s Licence. During that period you drove without a licence on five occasions, namely –
(i) on 22 November 2019, when you attended at your friend’s house;
(ii) on 18 January 2020, when Acting Sergeant Kohn observed you driving;
(iii) on 21 January 2020, when Sergeants Grant and Chatfield saw you driving;
(iv) on 25 January 2020, when your driving was captured on CCTV footage at the BP Service Station on the Western Highway in Stawell; and
(v) on 28 January 2020, when Acting Sergeants McConachy and Kohn saw you driving.
26With your consent, this summary offence is a rolled-up charge capturing those five episodes that you drove without being the holder of a Victorian Driver’s Licence.
Arrest and interview
27You were arrested by police in Tullamarine on 7 February 2020. The following day you participated in a record of interview.
28During the interview you denied stealing the Ford Courier belonging to Ms Porter but stated that a man whom you knew as “Nester” gave you a lift in that vehicle from Ballarat to Ararat. You agreed that you may have driven the vehicle to your friend’s house. You stated that you believed the vehicle was recovered by police in a back laneway in Ararat. You admitted that you believed the vehicle was stolen, as Nester offered to sell it to you for $500. The vehicle had to be started using a pair of scissors.
29When asked about the stolen registration plate taken from Ms Horton’s vehicle, you told police that you had a vague recollection of putting a numberplate on the stolen car, so you must have stolen the numberplate from Ballarat.
30Although you initially told the police that you had no recollection of driving the Corolla on 18 January 2020, or of having contact with the police, you agreed that you must have been driving the car as no one else had access to it.
31When questioned about the driving incident in Logan Road, you told police that you could now remember the incident. You denied having any intention to ram the police car, explaining that it was a narrow road and your intention was to merely drive around the police car so as to avoid apprehension.
32When questioned about the incident at the petrol station on 21 January 2020, you admitted that you were filling the Corolla tank with petrol when police entered the service station. You agreed that as the police approached you, you got back into the car and drove off. When it was suggested that you drove off in a manner dangerous, you stated that your actions were reckless.
33Regarding the police pursuit on 28 January 2020, you told police that you had no memory of the incident, however, you said you did not deny it, since you were the only person who drove the Corolla.
Indictment No. L10319997
34In relation to this Indictment, you are to be sentenced on one charge of the aggravated offence of recklessly exposing an emergency worker to risk by driving contrary to s317AF(1)(a) of the Crimes Act (Charge 1) and two charges of possession of a drug of dependence contrary to s73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Charges 2 and 3).
35The maximum applicable penalties for these charges are –
(i) aggravated offence of recklessly exposing an emergency worker to risk by driving – 10 years’ imprisonment.
36This offence is a Category 2 offence, making s5(2H) of the Sentencing Act applicable. As explained earlier, this means that unless one of the exceptions set out in that provision applies, the Court must impose a term of imprisonment (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with s44). It is not suggested that any statutory exception applies. Section 16(3D) of the Sentencing Act also applies to this offence. As I also explained earlier, that section provides that every term of imprisonment imposed on a person for such an offence –
“… must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.”
37Section 89(2)(b) of the Sentencing Act also applies to this offence. As mentioned earlier, that section provides that the Court must disqualify you from driving a motor vehicle on a road in Victoria for the period for which you would have been disqualified from obtaining a driver license or learner permit, had you held one, in this instance, for a period of not less than two years effective from the date specified by the Court.
(ii) possession of a drug of dependence
38Where the Court is satisfied on the balance of probabilities that the offence was not committed for a purpose relating to trafficking in that drug, one year’s imprisonment or a fine of 400 penalty units. The prosecution does not allege that the possession charges were committed for a purpose relating to trafficking in the respective drugs.
Circumstances of offending
39The circumstances of offending are well set out in the Summary of Prosecution Opening upon Plea dated 3 November 2021 tendered as exhibit B.
40The events giving rise to the charges on this indictment arise out of the attempt by members of police to arrest you in the car park of McDonald’s in Tullamarine on 7 February 2020. On that occasion, you were parked in the stolen Toyota Corolla hire car (referred to in Charge 3 on Indictment No. L10320007). The vehicle had stolen numberplates attached to it. Those numberplates had been stolen from a 2008 Toyota Corolla in Brookfield a few days earlier. When the police used two police cars to block your exit from the car park so that they could arrest you, you rammed the two police cars in an attempt to avoid arrest.
41The day before this incident, on 6 February 2020, you drove from your home in Ararat to Tullamarine with your girlfriend. At the time, you were driving the Toyota Corolla that had been stolen from Hertz and is the subject of Charge 3 on Indictment No. L10320007.
42Without attempting to provide the level of detail of the events leading up to the charges as is provided in the Prosecution Summary, which you accept as accurate, suffice it to say that there is ample evidence that you were the driver of the stolen Corolla during the relevant period. In that period, whilst in possession of the vehicle, you made contact with a number of persons by telephone, and in person.
43At 11.11pm on 6 February 2020, you entered the car park of McDonald’s in Tullamarine. You spent some time there, and also met another person there.
44At 11:50pm, Leading Senior Constable Canteri, a member of the Victoria Police Dog Squad, was patrolling the Tullamarine area in an unmarked car. He pulled into the McDonald’s car park and noticed the vehicle in which you were seated with your girlfriend. He noted that the vehicle had stolen numberplates affixed to it. Leading Senior Constable Canteri then went to a nearby Coles Express to wait for further police units to arrive. Three police units were despatched to assist in your arrest.
45Whilst Leading Senior Constable Canteri was waiting for the units to arrive, he observed your interaction with the driver of a BMW, which then left the carpark.
46All police units met up at the nearby Shell Express service station. There, after further surveillance was conducted of your car, police determined to use their vehicles to form a “V” so as to block you from exiting the carpark.
Charge 1 – aggravated offence of recklessly exposing an emergency worker to risk by driving
47Acting Sergeant Gaylard and Constable Silveira entered the carpark first, followed by First Constable Gacevski and Constable Ansah. Acting Sergeant Gaylard pulled her unmarked police car in front of the stolen Corolla towards the driver’s side of the Corolla, while First Constable Gacevski pulled his unmarked police car up on the passenger side of the Corolla. Once the police cars were stationary there was approximately half a metre to a metre between the front of the police cars and the Corolla, and the police cars were about a metre or two from each other.
48Neither police car had its siren or lights activated as they blocked in the Corolla, however, all four police members were wearing integrated equipment vests with reflective police labels on the front and rear. The Prosecution concedes that visibility was an issue, and notes that the police badges were relatively small.
49Both First Constable Gacevski and Constable Ansah exited their vehicle, with Constable Ansah getting out of the vehicle on the passenger side so that he was positioned between the two police vehicles and directly in front of the Corolla. Constable Ansah drew his firearm, aiming it at the occupants of the car. He yelled out to you a number of times “Police! Get out of the car.” First Constable Gacevski saw you reach forward with your hands in the Corolla, so he also drew his firearm and demanded that you show your hands.
50Despite police efforts to detain you, you ignored their demands. Instead, you put the Corolla into drive and accelerated to one hundred per cent capacity, causing the vehicle to suddenly propel forward in a left trajectory at speed and collide with both police vehicles. It appeared that you were attempting to ram the police cars in an effort to make a path through them so that you could escape.
51At around the same time as you accelerated towards Constable Ansah and the police vehicles, Constable Ansah discharged four rounds from his police firearm towards you and your passenger. At the time he believed that Acting Sergeant Gaylard was out of her car and standing near him. He thought that they were both directly in front of the Corolla and were in danger of being struck by the Corolla as it was ramming the police cars. Three of the shots impacted on the Corolla and one of the shots struck you in your left shoulder and then lodged in the driver’s seat.
52Actually, when you rammed the police cars, Acting Sergeant Gaylard was still seated in the driver’s seat of her vehicle. She saw you reach for the gearstick and yelled out to you, “Don’t fucking do it,” but she was not sure whether you heard her. Constable Silveira was either just about to get out of his police car or was in the process of getting out of the car when you rammed his police car.
53After the shots were fired and the Corolla came to standstill, the police officers approached the vehicle and arrested both you and your passenger. Police rendered first aid to you while they waited for the ambulance to arrive. You were then taken by ambulance to the Royal Melbourne Hospital where you were treated for your gunshot wound.
54On the journey to the hospital, you were accompanied by Constable Rigas who sat with you in the back of the ambulance. There, Constable Rigas questioned you about the events in the McDonald’s carpark. He asked you whether you were aware that the vehicles were police vehicles. You replied that you were so aware, adding that you had outstanding warrants.
55With your consent, Charge 1 is a rolled-up charge to include the four members of police who were exposed to risk by your driving, namely First Constable Dimitar Gacevski, Constable Akwesi Ansah, Acting Sergeant Jessica Gaylard and Constable Graeson Silveira.
Charges 2 and 3 – possession of a drug of dependence
56Police searched the Corolla and located a cigarette packet containing 4.2 grams of cannabis (Charge 3) and a press-seal bag containing 2 grams of methylamphetamine (Charge 2).
57The Toyota Corolla was fitted with an airbag control module which stores data regarding the operation of the car. Detective Sergeant Dr Jenelle Hardiman, an expert in accident reconstruction, downloaded the data from the airbag control module. From that data Dr Hardiman was able to determine that:
(i) the Corolla was involved in two impacts that occurred within a second of each other;
(ii) The Corolla was stationary with the ignition off prior to impact and that the ignition was turned on 3.45 seconds before the first impact;
(iii) The driver moved the gearshift from Park to Neutral and then to Drive before accelerating at one hundred per cent; and
(iv) The Corolla achieved a speed of 7 kilometres per hour at the time of the first impact.
Record of Interview
58You were discharged from the Royal Melbourne Hospital on 7 February 2020 and participated in a record of interview with the police at the Melbourne West Police Station on 8 February 2020. During the interview you told police that you knew that the Corolla was probably stolen, and that you had bought it from someone for $500 about three weeks prior to the incident. You said that you believed the vehicle was “red hot”, meaning stolen, because it had false numberplates attached to it.
59You also told police that about a week ago one of your friends stole the registration plates WSV 456 off a vehicle that was similar to the stolen Corolla you were driving and that someone else attached those numberplates to the Corolla.
60You explained to police that you drove to Melbourne that day from Ararat to see your sister and to do some shopping. You said that you parked in the McDonald’s carpark because you wanted something to eat and you were just sitting there having some time out. You stated that apart from your girlfriend who was the passenger in the Corolla, you did not know anyone else in the carpark.
61You explained that when the two cars pulled in front of you, you did not know what to think and you were scared. You said that you put your foot on the accelerator and attempted to drive around the two cars. You claimed that you did not know whether the occupants of the cars were police or males who had recently ambushed and assaulted you in Ararat and Stawell. Either way, you said that you wanted to get away from the vehicles. You admitted that you knew that you had outstanding warrants and that this would have provided a motive to flee.
62You also admitted to police that the methylamphetamine in the Corolla belonged to you and that you had used it a few hours before being arrested.
Related summary offences
63Upon your plea of guilty to the charges the subject of Indictment No. L10319997, you agreed to have summary offences related to that indictment transferred to this Court under s145 of the Criminal Procedure Act 2009.[4] You pleaded guilty to those charges, namely –
(i) having a prescribed illicit drug in your blood within three hours of driving contrary to s49(1)(i) of the Road Safety Act (Charge 24); and
(ii) one charge of unlicenced driving contrary to s18(1)(a) of the Road Safety Act (Charge 27).
[4]See Notice of Related Summary Offences dated 19 October 2021 in CR-21-00401.
64The charge of having a prescribed illicit drug in your blood within three hours of driving relates to the incident at the McDonald’s carpark. Whilst at the Royal Melbourne Hospital, at 1.10am, a blood sample was taken from you. That blood sample was subsequently analysed at the Victorian Institute of Forensic Medicine. The results confirmed the presence of both methylamphetamine (1.2 mg/L) and cannabis (3 mg/mL) in the blood sample taken from you (Summary Charge 24).
65At the time you drove the Toyota Corolla you did not hold a licence to drive a motor vehicle (Summary Charge 27).
66The maximum applicable penalty for having a prescribed illicit drug in your blood within three hours of driving is, in the case of a first offence, 12 penalty units, in the case of a second offence, 60 penalty units, and for any subsequent offence, 120 penalty units.
67The Court must also disqualify you from obtaining a licence for a minimum period of six months in the case of a first offence, and for twelve months in the case of a subsequent offence.
68The maximum applicable penalty for unlicensed driving is a fine of 60 penalty units or six months’ imprisonment.
Gravity of your offending
Aggravated offence of recklessly exposing an emergency worker to risk by driving
69Taking into account the overall circumstances of your offending, I regard the aggravated charges of recklessly exposing an emergency worker to risk by driving as the most serious of the charges in respect of which you are before the Court today. In particular, the rolled-up charge encompassing the risk to which you exposed four members of police is the most serious.
70In Nelson v The Queen,[5] the Court of Appeal observed:
“[43]The offence of recklessly placing emergency workers at risk of their safety and its aggravated form[6] have only recently been incorporated into the Crimes Act 1958[7] and have not yet been considered in sufficient numbers to build up a sentencing profile. We understand that this is the first occasion that this Court has had to consider this offence in a sentencing context. The aggravated offence carries with it a maximum sentence of 10 years’ imprisonment. … .”[8]
[5][2020] VSCA 219
[6] Crimes Act 1958, s317AE and s317AF
[7] Inserted by Crimes Legislation Amendment (Protection of Emergency Workers and Others) Act 2017.
[8]Supra at paragraph [43], per Hargrave and T Forrest JJA
71In that case, the learned sentencing judge had imposed a three-year term of imprisonment for the offence, a term described by the Court of Appeal as “moderate” in all the circumstances of the case.[9]
[9]Supra at paragraph [43]
72There are insufficient cases from which to glean a “tariff” for the aggravated offence of recklessly exposing an emergency worker to risk by driving. I have taken into account the cases referred to in Chapter 2.5.1[10] and Chapter 2.5.2 of the Victorian Sentencing Manual, and acknowledge that the circumstances of each case must be assessed on its own facts. The common element in all cases referred to in those chapters is that the offence must be regarded as inherently serious and that general and specific deterrence, denunciation and protection of the community are important sentencing considerations.
[10]In particular, see also Kehayias v The Queen [2021] VSCA 261 and Hutchison v The Queen [2021] VSCA 235
Handling stolen goods
73Handling stolen goods is generally regarded as a more serious offence than theft, and it carries a higher maximum penalty than does the crime of theft. The reason why the offence is considered to be more serious than the crime of theft is because it plays an indirect role in encouraging the thief to steal.
74Among the matters to be considered when assessing the gravity of a particular instance of handling, are:
· the period of offending;
· whether the offender was in the business of handling stolen goods; and
· the value of the property involved.
75You handled two cars, each of which you treated as your own, and which you drove.
76Ms Porter’s vehicle was stolen sometime between 7.00pm on 15 November 2019 and 1.00pm the next day. By 22 November 2019, you had retained possession of the stolen car, which you drove to your friend’s house that day. Police located and recovered the stolen vehicle two days later, on 24 November 2019. You were intending to use it that day, but the vehicle had been towed away before you arrived to push start it.
77The hire car rented from Hertz was stolen some time after 18 December 2019. You used that car on 18, 21, 25 and 28 January 2020. While driving that car, you committed a number of offences, including ultimately using it to ram police vehicles.
Theft
78The offence of theft can be committed in a wide variety of ways. The gravity of the offence varies from a low form of the offence to high-level offending involving property of significant value. You stole one numberplate, which was then attached to a stolen vehicle. Whilst not at the upper end of the scale of seriousness for this crime, it must regarded as serious in light of the purpose of the theft, namely, to disguise the fact that a vehicle in your possession was stolen.
Possess drugs of dependence
79The Prosecution concedes that your possession of the methylamphetamine and cannabis L was not for a purpose related to trafficking, and I am satisfied that you had these drugs for your personal use.
Various driving charges
80The aggravating feature of the driving offences is your persistent disregard of the laws governing and regulating licensing, driving and safe use of the roads. Your driving was dangerous at times, as is evident from some of the charges before me. That said, the Court must ensure not to inflict double punishment upon you where there is an overlap between the driving charges and the aggravated charges of exposing an emergency worker to risk by driving.
Overall gravity
81You committed a number of offences in various incidents between 22 November 2019 and 7 February 2020. Principles of general and specific deterrence, just punishment, denunciation and condemnation and protection of the community from you are important sentencing considerations, as was conceded by your counsel.
Effect of your offending on the victims
82One Victim Impact Statement was tendered. It concerns the rolled up aggravated charge of exposing an emergency worker to risk by driving, Charge 1 on Indictment No. L10319997.
83In his Victim Impact Statement dated 16 September 2021,[11] First Constable Dimitar Gacevski stated:
[11]Exhibit C
“Up until the night of the incident, I had a similar action plan in my head on how I would approach or deal with similar jobs I was responding to. For some what of four years it has seemed to of worked out in affecting a safe arrest of an offender. That night, I found out quickly that any action plan/risk mitigation strategy we put in place did not work.
For some time, I kept replaying the incident in my head and asked myself a million questions on how the incident unfolded. Did I position the police vehicle too far away from his, What if I hadn't positioned the police vehicle close enough to the other police vehicle, would this of resulted in my partner, ANSAH getting run over and being seriously injured or killed.
These thoughts will play on my mind for quite some time as I felt a feeling of guilt of exposing my partner to such a dangerous situation. I felt mixed emotions of anger and upset at myself on the night of the incident. It was hard to see one of my colleagues visibly distraught and in tears back at the station from what had aspired [scil. transpired]. I could not imagine what was going through his mind at the time.
Moving forward, I now have a more cautious approach when dealing with people and with similar incidents. I find it difficult at times to trust people on face value or thinking if they will comply with directions/commands.”
[sic]
Plea in mitigation
84Your counsel, Mr M Kozlowski, made a plea in mitigation on your behalf. He conceded the gravity of your offending and that the only appropriate response to it is the imposition of a term of imprisonment of such length that both a head sentence and non-parole period must be fixed.
85I now turn to the matters advanced by your counsel.
Your guilty plea
86As mentioned, you pleaded guilty to the charges.
87A guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount. A number of factors affect the weight that your guilty plea can attract.
88The matter was listed to proceed as a two-day contested committal, commencing on 27 January 2021. That day, the matter resolved and was listed for further hearing on 24 March 2021 so that the question of whether your case should be dealt with summarily could be determined. On 24 March 2021, your application for summary jurisdiction was dismissed and the matter then proceeded in the usual way in this Court.
89You entered your guilty pleas to the charges on both indictments when the matter came before me on 12 August 2021, as mentioned earlier.
90In determining the weight to be given to your plea of guilty, I take into account the following factors:
(a) the timing of your plea, which I accept was indicated at an early stage following negotiations with the Prosecution;
(b) you are entitled to a statutory discount because of your plea;
(c) you have avoided the cost and inconvenience of a trial and you have spared witnesses the inconvenience and ordeal of giving evidence upon your trial;
(d) I am satisfied that your plea indicates your remorse; and
(e) there is enormous social utility involved in your guilty plea, and by taking this course, I accept that you have facilitated the course of justice.
91Dealing with the question of the social utility inherent in your guilty plea, I note that additional weight must be given to this factor because of the impact that the world-wide pandemic of COVID-19 has had on the criminal justice system.[12]
[12]Worboyes v The Queen [2021] VSC 169, particularly at paragraphs [34]-[39]
Relevance of COVID-19 over and above social utility
92In addition to the extra weight that your guilty plea must attract because of COVID-19, I also take account of the potential impact that COVID-19 might have upon the service of a sentence of imprisonment, including:
(i) You may face a higher risk of contracting the disease whilst in custody;[13]
(ii) There is an increased likelihood of periods of quarantine or isolation; and
(iii) The pandemic may cause additional stress and concern for prisoners and their families, as it is for every member of the community.[14]
[13]The Queen v Madex [2020] VSC 145 at paragraphs [51]-[52]
[14]Brown v The Queen [2020] VSCA 60 at paragraph [48]
93I note that in her report dated 30 January 2022, psychologist, Ms Gina Cidoni, referred to the additional burden that COVID-19 has placed on you whilst you have been on remand:
“80.Prison in the current pandemic is onerous and more so for Mr Coad as it would cause many different symptoms in response including intense emotional reactions, dramatic mood swings, intensely painful feelings of anxiety, distress, and sadness, and impulsive behaviours that can lead to conflicts and deterioration. The lengthy isolation periods because of the pandemic leads to rumination, distress and potentially, major depressive episodes and self-harm.”[15]
[15]Exhibit 2, paragraph 80
94I accept Ms Cidoni’s opinion in this regard.
Personal circumstances
95Your personal history is well set out in Ms Cidoni’s report.[16]
[16]Exhibit 2
96You are of Aboriginal decent of the Palawa people in Tasmania on your maternal side. You were born on a farm in Ararat and were raised by your parents until they separated when you were aged four years. You have a sister who is aged thirty-five years.
97After your parents separated, you continued living at the farm with your father and sister while your mother moved to Stawell. When you were aged twelve, your father remarried, and your stepmother and two stepbrothers moved in. Unfortunately, you clashed with your stepmother, and at age fourteen you went to live with your mother.
98Your maternal uncle and grandmother lived next door to your mother. Both your uncle and your grandfather were truck drivers. Your grandfather died in a truck accident.
99When you were aged fifteen years, you spent time in juvenile detention. Upon your release, you were ordered to return to live with your father and stepmother in Ararat. You told Ms Cidoni that your behaviour deteriorated. You spent some time moving back and forth between the homes of your mother and father. You ceased contact with your father when you were aged twenty-one.
100You had a few brief relationships during this time.
101In 2010, you formed a relationship with Casey. The relationship lasted for three years. You have an eleven-year-old son and a nine-year-old daughter from that union. You lived with Casey in Ararat but separated when Casey was pregnant with your daughter. Casey then moved to Swan Hill, while you remained in Ararat until the lease on your residence expired. You then spent time in prison. Upon your release, you reunited with Casey. You lived together in Swan Hill for six months, but your drug use caused the breakdown of that relationship. Despite your separation from Casey, the two of you have remained in contact over the years. Your periods of incarceration have placed great strain on your relationship, and you have not seen your children for the last two years. You told Ms Cidoni that this was because it was too hard on them, especially for your son, who was acting out after each occasion of contact with you. You said that despite it all, Casey remains a major support and you have accepted that the separation is final.
102Following the separation, you returned to Ararat and found yourself homeless. You “couch surfed” when you could. You admitted to Ms Cidoni that this practice was bad for you because it placed you in contact with other drug users. You said that you were released from prison without having secured stable housing and you would return to the area and re-engage with the same peers.
103You had a close relationship with your stepbrother, Jake, with whom you lived at one point. Tragically, Jake committed suicide in 2018 while you were in prison. You were not allowed to attend the funeral and you have struggled immensely with this loss.
104After Jake’s death, you ceased contact with your family. You believe that your father and stepmother separated shortly after Jake’s death and that your stepmother turned to drugs to help cope with her grief. You were living with your stepmother before coming into prison. Casey has remained in contact with your stepmother.
105Your mother now resides in Stawell and your father lives in Ararat. You have had no contact with them since your remand and your familial relationships are strained.
106You reported to Ms Cidoni that when you are released from prison, you plan to live with a female friend outside Swan Hill to be near your children. Your friend is not a drug user and she provides a positive influence in your life.
107I accept the facts asserted by Ms Cidoni and note the many difficulties that you have had in your life.
108As was noted by Ms Cidoni, most, if not all of your prior brushes with the law have occurred because of your drug addiction.
109Ms Cidoni also provided a history, which I accept as accurate, about your education and employment history.
110You attended Moyston Primary School for Prep to Grade 6 and reported no issues with learning or behaviour. You continued your schooling at Ararat High School for Year 7, before moving to Stawell High School in Year 8. You completed two years at this school, where you reported behavioural problems and drug use. You spent time in detention. You were frequently moving between your parents’ homes, which complicated your education. You returned to Ararat High School for Year 10, which you did not complete. You reported your performance as satisfactory, although you noted your disinterest in school. You told Ms Cidoni that you can read and write and complete forms without assistance. The limitations you have with writing are, however, displayed in the written apology you wrote to the Court, tendered as exhibit 3.
111At age seventeen, you completed a bricklayer’s pre-apprenticeship course. You were engaged in shearing until the age of nineteen, when the business where you worked closed. Since then, you have worked in numerous short-term roles at the abattoirs and for Milford Fabrications. You reported that your longest period of unemployment was for approximately four years.
112Prior to your remand, you were receiving the Newstart Allowance.
113It is to your credit that despite the limitations on available courses in prison due to COVID-19, you completed a cleaning course, allowing you to work as a billet. You also completed an Aboriginal art course. In addition, you have been working as a peer support worker in prison. You noted that there have been frequent lockdowns since your remand.
114Addressing your medical history and mental health, Ms Cidoni documented an extensive history of injuries and trauma.
115At age eleven, you broke your arms on two separate occasions while riding your motorcycle on the family farm. You broke your right arm again at age fifteen. You also reported sustaining several concussions from accidents when you were young but did not report any long-term effects.
116At age twenty-three, you were involved in a motorcycle accident. You think that you fractured your ankle on impact, but you are unsure of the extent of the damage. Both of your hands were fractured, and your arm was placed in a plaster cast. You were hospitalised for these injuries but discharged yourself on the same day. You reported ongoing issues with your hands including pain and restricted range of movement.
117You reported having been robbed and hit to the back of the head with a sledgehammer seven years ago. You told Ms Cidoni that you were “set up” by a friend. You said that in the assault, your head was split and you sustained another hand fracture as you tried to protect yourself.
118You did not seek medical help for your injuries, and were arrested some ten days later.
119Upon your arrest, you were admitted to the Ararat Hospital. You reported that both of your arms were fractured, and that you had also sustained back injuries.
120As is noted in the circumstances of your arrest in relation to the incident at the McDonald’s carpark, you were shot in the shoulder, as a result of which you spent one-and-a-half days in the hospital. You now have a permanent scar on your left shoulder. You told Ms Cidoni that you can still smell burning skin.
121As to your mental health, Ms Cidoni noted that you reported no psychiatric admissions.
122While in prison you were prescribed antidepressants. You attended counselling a few times under past court orders. Currently, you have been taking prescribed medications, Avanza and methadone (50mil).
123You have no documented history of self-harm, suicide attempts or ideation. You have, however, reported struggles with your grief over the loss of your stepbrother, Jake, in 2018. You told Ms Cidoni that Jake hanged himself and that his lifeless body was found by a friend. Since being shot by police, you have suffered nightmares and have expressed feeling hypervigilant and overly alert.
124You reported to Ms Cidoni a history of abuse in your childhood. You said that throughout your childhood you were subjected to physical and verbal violence by your maternal uncle. He lived next door to you and was often responsible for your care when your father was absent. You said that you were forced to go on truck drives with him and made to drive despite being underage.
125Ms Cidoni also documented your history of alcohol and substance abuse.
126You reported to Ms Cidoni minimal alcohol abuse. Unfortunately, you abused illicit drugs from the age of fourteen, commencing with cannabis use as far back as at the age fourteen. By the time you were aged seventeen, you were using cannabis on a daily basis, a habit you maintained until the time of your arrest.
127Amphetamines were also a problem for you. You were first introduced to the drug by your uncle when you were aged fourteen. You told Ms Cidoni that you recalled the feeling of being alert and awake through the night when you took it. You became a heavy user of amphetamines between the ages of twenty and twenty-three. You have also dabbled in LSD and heroin. At age eighteen, you used methamphetamines for six months and did so again at age twenty-six. You told Ms Cidoni that your drug use was a problem for you and that you were using daily until the time of your arrest. You reported auditory hallucinations associated with your use of methamphetamines.
128You have engaged in programs while in prison. You are open to completing further treatment so that you can better yourself and play a positive role in your children's upbringing.
129You reported no gambling problems.
130Ms Cidoni administered a number of tests on you. As a result, Ms Cidoni opined:
“70.Daniel Coad is a 38-year-old man presenting with low average-borderline intellect determined with limited testing.
71.He has the following clinical diagnoses in line with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).
-Major Depressive Disorder (MDD)
-Post-Traumatic Traumatic [sic] Stress Disorder (PTSD) with anxiety.
72.Symptoms include low mood, feelings of worthlessness, helplessness, fear, worry, anxiety, at times panic, which can lead to withdrawal and social isolation. Low energy, concentration problems, inability to relax, and restlessness may also be present along with impacted sleep and appetite.
73.His exposure to trauma likely from a young age has led to heightened physiological and psychological stress reactivity, and this undermines his stress resistance and capacity to respond in productive ways. The reported early exposures and lack of treatment would be exacerbated by the recent shooting, where symptoms are acute.
74.He turns to substances as a way to self-medicate, as an outlet to escape reality, to ease the symptoms of stress and discomfort and produce a sense of wellbeing.
75.His meth use was high at the time and is known for its mind-altering effects. His use would have disturbed his thought processes and as it is a stimulant, chemical alterations in the brain are known to occur. Meth interacts with areas of the brain that manage emotions and impulses like fear, aggression, and fight-or-flight responses. It can overstimulate these areas and create an increased amount of paranoia or impulses.
76.Although he was using drugs profusely, his underlying conditions also contribute to the creation of disturbing thoughts, reexperiencing effects, severe mental and physical distress, and major deviations in the way he thinks and feels. He has difficulties in regulating emotional and behavioural responses and recognising the full impact of his behaviours on others. In this aspect, his moral culpability is affected.
77.In terms of treatment strategies, direct interventions are required to address his thinking, his mood, and its management; also, to address his beliefs about himself and his traumatic life experiences.
78.He should attend a psychiatrist and accept treatment and attend upon a psychologist for counselling. Individual psychotherapy can help stop/change these destructive cycles of using drugs to combat his uncomfortable emotional states is an important task of early recovery. To break this cycle, it is essential for him to learn strategies to self-regulate his symptoms as well as learn alternative coping strategies.
79.Specialised AOD interventions should be aimed towards abstinence, at improving insight into triggers, risk periods, alternative strategies, and a relapse prevention plan.
80.Prison in the current pandemic is onerous and more so for Mr Coad as it would cause many different symptoms in response including intense emotional reactions, dramatic mood swings, intensely painful feelings of anxiety, distress, and sadness, and impulsive behaviours that can lead to conflicts and deterioration. The lengthy isolation periods because of the pandemic leads to rumination, distress and potentially, major depressive episodes and self-harm.”[17]
[17]Exhibit 2, paragraphs 70-80
131Although Ms Cidoni offered no opinion about your risks of re-offending, it is clear that you will need guidance and treatment to avoid relapsing into your old habits.
132I accept Ms Cidoni’s opinion and take it very much into account when sentencing you today.
Prior convictions and court appearances
133You have admitted to a lengthy history of prior court appearances and convictions.
134You have amassed many prior convictions, which are documented in your criminal record dated 21 October 2021. Unfortunately, that document lacks clarity with respect to some of your prior convictions, particularly in relation to relevant driving matters. As mentioned, the maximum applicable penalty for some of the driving charges depends on whether you are to be sentenced for a first, second or subsequent offence. Despite my request that the Prosecution provide a thorough analytical table setting out your criminal history in full, the document provided fell short of what was required.[18]
[18]See exhibit D, Submissions on Criminal History for plea dated 10 November 2021
135For example in relation to the summary offence laid under s64A of the Road Safety Act, on behalf of the Prosecution, Mr Brown asserted that you have eight relevant prior convictions for this offence. The criminal record shows that that on 4 October 2018, in the Horsham Magistrates’ Court at Horsham, you were convicted of one charge of “Fail to stop vehicle on police direction”; however, the record does not state whether this was a conviction for an offence laid under s64A of the Act or s59(1)(a) and 59(2) of the Act. I note that although the charge was not proceeded with, you also faced the alternative charge laid under s59(1), charge 25 on Notice of related Summary Offences dated 19 October 2021.
136On 24 November 2016, in the Magistrates’ Court at Ballarat, you were convicted of seven charges recorded in the criminal record as “fail to stop motor vehicle on request”. Unfortunately, again, the record does not state whether these convictions were under s64A or s59(1)(a) of the Road Safety Act.
137Although a number of certified extracts of the records of the Magistrates’ Court were attached to exhibit D, there were no certified extracts relevant to these eight prior convictions.
138As mentioned earlier, the maximum penalty for a charge brought under s64A of the Road Safety Act depends on whether the penalty is for a first or subsequent offence under that provision.
139In the absence of evidence establishing that your eight prior convictions for failing to stop were for charges brought under s64A and not under s59(1)(a), I am compelled to find that I am not satisfied beyond reasonable doubt that the charge before me is for a subsequent offence under s64A. Accordingly, although I am satisfied that you have eight prior convictions of a similar nature, I regard the maximum applicable penalty is that for a first offence. That will affect both the penalty and the mandatory period in respect of which you must be disqualified from driving.
140Similarly, with regard to the summary offence of having a prescribed illicit drug in your blood within three hours of driving contrary to s49(1)(i) of the Road Safety Act, Mr Brown submitted that you have two or more prior convictions for this offence. The maximum applicable penalty depends on whether this is your first, second or subsequent offence under that provision.
141The criminal record states that on 29 June 2012, in the Magistrates’ Court at Horsham, you were convicted of one charge of “drive vehicle whilst exceeding P.C.D”. There is no further explanation of what is meant by “exceed P.C.D” or under which section this charge was brought. On the same day, at the same Court, you were convicted of one charge of “fail drug blood test W/IN 3 HR of driving”. Again, no certified extracts of the records of the Magistrates’ Court were provided to explain what was meant by “exceed P.C.D”, and whether this was a different charge to the charge described as “fail drug blood test W/IN 3 HR of driving”. I am prepared to accept that the latter charge recorded a conviction for an offence laid under s49(1)(i) of the Road Safety Act; however, on the state of the evidence before me, I am not satisfied beyond reasonable doubt that the prior conviction described as “exceed P.C.D” represents a prior conviction under that section.
142In most cases no problems arise when an offence in respect of which the offender was previously convicted is recorded in the criminal record in summary form. This case demonstrates, however, that adopting abbreviations or shortcuts in the identification of the actual charge of which the offender was previously convicted can give rise to ambiguity, particularly when more than one offence might be summarised using similar words. In this regard, I note that s244(1)(d) of the Criminal Procedure Act 2009 provides:
“(1)A criminal record must contain, in relation to each previous conviction—
…
(d)the offence committed; … .”
143I gave the Prosecution ample opportunity to provide evidence to satisfy the Court about your relevant prior convictions, yet, unfortunately, adequate assistance was not forthcoming.
144Whilst I am satisfied that you have one relevant prior conviction for having a prescribed illicit drug in your blood within three hours of driving contrary to s49(1)(i) of the Road Safety Act, I am not satisfied to the requisite degree that you have two such prior convictions. Accordingly, the maximum penalty and mandatory period of licence disqualification that I shall apply are those relevant to a second, but not to a subsequent offence.
145Turning to other relevant prior court appearances and convictions, I am satisfied to the requisite degree that, leaving aside interstate court appearances, you have appeared in court on twenty-two occasions for a variety of offences. As best I can determine on the evidence before me, I am satisfied that you have:
(i) Two prior convictions for handling/receive/retention of stolen goods;
(ii) Nineteen prior convictions and one non-conviction disposition for theft;
(iii) Thirty-five prior convictions for unlicenced driving;
(iv) Three prior convictions for dangerous driving;
(v) One prior conviction for dangerous driving whilst being pursued by police;
(vi) Six prior convictions or non-conviction dispositions for possessing cannabis;
(vii) Five prior convictions or non-conviction dispositions for using cannabis;
(viii) Two prior convictions for possessing amphetamine; and
(ix) Two prior convictions for possessing methylamphetamine (recorded between 24 November 2016 and 4 October 2018).
146It is also evident from your criminal record that you have demonstrated a difficulty in, and/or unwillingness to comply with court orders, many of which contained a component directed at addressing your underlying problems in an effort to prevent or reduce the risk of your re-offending. The criminal record documents that you have:
(i) One failure to comply with an undertaking;
(ii) Two failures to comply with a Community Based Order;
(iii) One contravention of a condition of leave;
(iv) Three contraventions of a suspended sentence;
(v) Two failures to answer bail;
(vi) Four contraventions of a Community Correction Order; and
(vii) Four contraventions of a Family Violence Intervention Order.
147Over and above the prior court appearances to which I have referred regarding your non-compliance with police directions to stop, you also have a number of prior convictions and court appearances for driving-related matters, as well as for dishonesty matters:
(i) Seven for driving whilst disqualified;
(ii) One for theft from shop;
(iii) One for attempted theft from a motor vehicle;
(iv) Three for theft from a motor vehicle;
(v) One for theft of a motor vehicle;
(vi) Eight for obtaining property by deception;
(vii) One for attempting to obtain property by deception;
(viii) Twelve for burglary;
(ix) One for aggravated burglary;
(x) Two for careless driving; and
(xi) Two for careless driving – improper use of a vehicle.
Remorse
148Your counsel submits that you are remorseful for your conduct.
149You wrote a letter of apology, tendered as exhibit 3. In that letter, you stated:
“Your Honour,
My full name is Daniel Charles Coad, I am 38 years of age I have never wrote a letter to the courts before, but I feel it[’]s important that you know how truly sorry I am for my actions that night and the weeks leading up to my arrest. There is no excuse for my behaviour other than I was highly intoxicated by the drug ice. I never meant or wanted to hurt or scare any body especially the Police it all happened so quickly and I honestly can[’]t recall much of that night. I just want to apologise to every body involved and thank the Police officers who applied first aid to my shoulder and also thank the ambulance members involved.
Since iv e been in prison I’ve had a lot of time to reflect on my life and the poor choices i’ve made along the way i[’]m missing my kids grow up so fast and I want to be apart of there lives when i[’]m released this time I won[’]t be going back to Ararat where my offending started I will be going to Swan hill where my kids are the one thing that is different this time is I really want to change I want to be there for my kids and have a positive impact on there lives before they are young adults I know I have a long way to go but i[’]m ready to change and be a better person
Yours truthfully and sincerely.”
[sic]
150As mentioned earlier, I accept that your plea also reflects your true remorse
Prospects of rehabilitation
151As the criminal record shows, you have been given many opportunities to address the underlying causes of your offending, which I acknowledge and agree are mostly associated with your drug addiction and your difficulty of dealing with the troubled life you have had.
152It appears that whilst on remand you have gained some insight into your problems; however, as Ms Cidoni reported, you still need a lot of assistance to overcome them so that you can lead a law-abiding life.
153As mentioned earlier, it is to your credit that you have made use of your time on remand, undertaking various programs, working as a billet and pursuing Aboriginal Art.
154You are at a crossroads in your life. You have every incentive to reform so that you can reconnect with your children and spare them any embarrassment and ordeal, should you re-offend. You are truly sorry for what you have done, and I am satisfied that your remorse and acceptance of responsibility for your actions will enhance your rehabilitation as you aim to turn your life around.
155If you remain as committed to your rehabilitation as you say you are, your prospects of rehabilitation are far better than your prior record would imply. In all the circumstances, I am prepared to hold that there is cause for guarded optimism about your prospects of rehabilitation.
Submissions as to penalty
156Mr Brown referred to your appalling criminal record and the gravity of your offending on this occasion. He submitted that general and specific deterrence, denunciation and condemnation of your conduct and protection of the community must loom large as sentencing factors.
157Mr Brown assessed the level of your offending as mid-range, insofar as the aggravated charges of recklessly exposing an emergency worker to risk by driving are concerned.
158In all the circumstances, Mr Brown submitted that the only appropriate disposition is the imposition of an overall total effective sentence that would require the fixing of a non-parole period.
159On your behalf, Mr Kozlowski conceded the gravity of your offending and that a total effective term of imprisonment requiring the fixing of a non-parole period must be imposed. He noted that principles of totality and proportionality must be applied and that the overall sentence must not be crushing. In all the circumstances, Mr Kozlowski submitted that the non-parole period fixed ought see you released on parole in the not-too-distant future.
Sentences to be imposed
160I take into account all of the matters personal to you to which I have referred, including your prospects of rehabilitation. I must also take into account such matters as deterrence, especially general deterrence, which is of importance in a case such as this. I agree with Mr Brown that specific deterrence is also a relevant sentencing consideration in your case. I am required by law to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I must also take into account principles of totality and proportionality and avoid imposing a crushing sentence.
161I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment. I must also take into account all of the matters identified earlier.
Indictment No. L10320007
162I have no alternative to the imposition of terms of imprisonment on each of the charges on the Indictment.
163On Charge 1, handling stolen goods, namely the Ford Courier utility belonging to Miriam Porter, you are convicted and sentenced to twelve (12) months’ imprisonment.
164On Charge 2, theft of the car registration plate belonging to Marcia Horton, you are convicted and sentenced to one (1) month’s imprisonment.
165On Charge 3, handling stolen goods, namely the Toyota Corolla sedan that had originally been hired by another person from Hertz, you are convicted and sentenced to twelve (12) months’ imprisonment.
166On Charge 4, the aggravated offence of recklessly exposing an emergency worker, namely Senior Constable Mitchell Kohn, to risk by driving, you are convicted and sentenced to eighteen (18) months’ imprisonment.
167In relation to this charge, under s89(2)(b) of the Sentencing Act, you are disqualified from driving for the mandatory period of two (2) years, effective from today.
Related Summary offences
168On Charge 3, the rolled-up charge of unlicenced driving on five occasions, you are convicted and sentenced to three (3) months’ imprisonment
169On Charge 12, drive in a manner dangerous, you are convicted and sentenced to nine (9) months’ imprisonment.
170On this charge, you are disqualified from driving for a period of six (6) months effective from today.
171On Charge 24, drive whilst ought reasonably to have known that had been directed by a police officer to stop, you are convicted and sentenced to one (1) month’s imprisonment. As mentioned earlier, given the lack of clarity about whether you have a previous conviction for the same offence, you are disqualified from driving for a period of six (6) months, effective from this day.
Indictment No. L10319997
172In relation to this Indictment, I have no alternative to the imposition of terms of imprisonment on Charges 1 and 2.
173On Charge 1, the rolled-up charge of the aggravated offence of recklessly exposing an emergency worker to risk by driving, that is exposing First Constable Dimitar Gacevski, Constable Akwesi Ansah, Acting Sergeant Jessica Gaylard and Constable Graeson Silveira to risk by driving, you are convicted and sentenced to three (3) years’ imprisonment. This will be the base sentence.
174On this charge you are disqualified from driving for a period of two (2) years effective from today.
175On Charge 2, possess a drug of dependence, namely methylamphetamine, you are convicted and sentenced to one (1) month’s imprisonment.
176On Charge 3, possess a drug of dependence, namely cannabis L, you are convicted and sentenced to pay a fine in the amount of $200.00.
Related summary offences
177On Charge 24, having a prescribed illicit drug in your blood within three hours of driving contrary to s49(1)(i) of the Road Safety Act, I am satisfied that you have one prior conviction for this offence. Accordingly, you are convicted and fined in the sum $500.00.
178On this charge, you are disqualified from driving for a period of one (1) year, effective from today.
179On Charge 27, a charge of unlicenced driving, you are convicted and sentenced to one (1) month’s imprisonment.
Cumulation
180In determining whether to order any period of cumulation, and, if so, how much, I must take into account that most of the charges are discrete, were committed in differing circumstances and involved offending of such gravity that total concurrency would fail to do justice.[19] I must pay regard to principles of totality and proportionality, and I must avoid imposing a crushing sentence.
[19] See R v O’Rourke [1997] 1 VR 246 at 253; and DPP v Grabovac [1998] 1 VR 664
181Taking into account all relevant factors, I consider that it is appropriate to order some period of cumulation in respect of the two Indictments and their related summary offences. Having regard to the totality of your offending and the circumstances advanced in mitigation of penalty, I do not consider it appropriate to make the two aggravated charges of recklessly exposing an emergency worker wholly cumulative with each other and with the other sentences imposed this day, although I do consider that a degree of cumulation is appropriate.
182I therefore direct that nine (9) months of the sentence imposed in respect of Charge 4 on Indictment No. L10320007, three (3) months of the sentence imposed on Charge 1 on Indictment No. L10320007, and three (3) months of the sentence imposed on Charge 12 on the related summary offence associated with Indictment No. L10320007 be served cumulatively upon the sentence imposed on Charge 1 on Indictment No. L10319997, the base sentence, and with each other.
183That results in a total effective sentence of four (4) years and three (3) months’ imprisonment in respect of all offences for which you are presently before the Court (that is to say, in relation to both Indictments and both sets of related summary offences in respect of which you have been sentenced today.
184I will fix a single non-parole period applicable to all charges before the court today; that is, in respect of both Indictments and the two sets of related summary offences.
185Your counsel has submitted that a longer than normal period on parole would be appropriate in your case. I respectfully agree
186Among the matters to be taken into account when fixing the non-parole period are:
(a) That a non-parole period has a punitive element;
(b) That where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(c) An offender’s prospects for rehabilitation are almost always a significant consideration.
187In fixing the non-parole period, I take into account all of the matters to which I have referred including your remorse, your prospects for rehabilitation, as well as principles of just punishment, denunciation and condemnation, general deterrence and protection of the community. As mentioned, I consider you would benefit from a longer than normal period of parole. For that reason, I direct that you serve a minimum of two (2) years and six (6) months’ imprisonment before becoming eligible for parole.
Pre-sentence detention declaration
188You were arrested on 7 February 2020 and have remained on remand ever since.
189Under s18(4) of the Sentencing Act 1991, I declare that the period of 756 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
Statement under s6AAA of the Sentencing Act
190I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offences but for the plea of guilty. Therefore, pursuant to s6AAA, and taking into account the matters to which I have previously referred as relevant to the weight to be given to your guilty plea and noting the additional weight I have given to your plea because of COVID-19, I state that but for your guilty plea, the total effective sentence I would have imposed in respect of all charges for which you were sentenced today to terms of imprisonment on both Indictments and related summary offences is eight years and six months.
191I would have directed that you serve a minimum period of five-and-one-half years’ imprisonment before becoming eligible for parole.
192I direct, pursuant to s6AAA(4), that the sentence that would have been imposed but for the plea of guilty be noted in the Court’s records.
Ancillary Orders
Disposal Order
193By consent I make the Disposal Order sought by the Prosecution.
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