Director of Public Prosecutions v Condotta

[2016] VCC 1733

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01371

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS JOHN CONDOTTA

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2016
DATE OF SENTENCE:	10 August 2016
CASE MAY BE CITED AS:	DPP v Condotta
MEDIUM NEUTRAL CITATION:	[2016] VCC 1733

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Dangerous/Negligent Driving while pursued by Police; Reckless Conduct Endangering Life; Drive Motor Vehicle without License      

Sentence:Total Effective Sentence of 324 days’ imprisonment. Section 6AAA declaration: 18 months’ imprisonment and a Community Based Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Mandie
For the Accused	Ms K. Shepherd

Pages 1 - 7

 

 

HIS HONOUR: 

1Thomas John Condotta, you have pleaded guilty to one count of dangerous or negligent driving whilst pursued by police which carries a maximum period of imprisonment of three years, reckless conduct endangering life which carries a maximum period of imprisonment of 10 years and unlicensed driving which carries a maximum period of imprisonment of three months or 25 penalty units.

2The details of your offending are set out in the prosecution opening.  They are not in issue.  No point is served in repeating them in my sentencing comments but for the sake of clarity, I will append the prosecution opening to these comments.

3In my view your offending should be categorised as being at the serious end of driving related offending. 

4There is a 10 year sentence associated with the second count. 

5The first count involves you attempting to escape from police who were seeking to secure your lawful apprehension.  As to the second count, the offending was associated with a real risk of injury being occasioned to your passenger who was at all times an unwilling participant in this escapade and that risk of injury was in no way averted by your behaviour but rather that of your victim.

6You are 23‑years‑old.  You have been described at the time of this offending as having a lawless lifestyle in which you abused alcohol and drugs.  You were homeless and your life was characterised by the involvement with police and criminal law.  You have a considerable criminal history involving violence causing injury, property damage, assaults, dishonesty and driving offences.  Relevantly, at a young age you were convicted of driving offences which included recklessly causing injury.  In reality nothing much can be said in favour of the course which your life was taking in the past or at the time of this offending.  You are clearly supported by your father.  That support, it seems to me is significant.  As I view the video, the subject of the arson charge, it seems that on the night of that offending your father actually attended the property where you were living to collect your belongings with no apparent assistance from you.  He also attended your plea hearing.

7You have been in custody for a period of 319 days, of which some 295 days are to be reckoned as time served with respect to this offending. 

8I take into account in sentencing you, not only the period that you have served with respect to the three month sentence imposed by the Magistrates' Court but also the additional period of some 27 days reckoned by the Magistrate in fixing that sentence.  Each of those periods being relevant to the totality of the sentence that I impose in this instance.

9You are relatively young.  It is put on your behalf that you have been productive as a prisoner.  You are currently engaged in the preparation of meals and cleaning within the prison.  You have taken steps to rehabilitate yourself by exercising and being yourself, off drugs.  You have identified a number of things you wished to achieve upon your release.

10I give weight in sentencing you to your age, the fact that your mother is ill and needs your support; that you have some employment prospects and that you have some prospects of turning your life around.

11You have pleaded guilty to these charges.  That plea entitles you to a discount in the sentence which I would have otherwise imposed in this instance by reason of its social utility.

12Whilst your youth and your commencement upon the road to rehabilitation are factors which are important in sentencing, equally your criminal history, the activities involved in the offending to which I have referred which deserve punishment and denunciation; the need to ensure that you get the message that the days of judicial officers giving you another chance are over given your repeated flouting of your previous chances and the need to send a message to other members of the community that conduct of this type won't be tolerated are all‑important sentencing principles.

13Finally I give appropriate weight to the admissible content of the witness impact statement to which I have referred before I commenced my comments.

14I am satisfied that it would be in your interest and that of the community that you have some supervision upon your release from custody.  You have been assessed as being a suitable candidate for a community corrections order and I intend in this instance to impose such an order.

15There is no issue that your offending in this instance warrants the imposition of a prison sentence and you have been serving one.  It is put on your behalf that a sentence limited to the time reckoned has been served in respect of this offending should be imposed in this instance in combination with the community corrections order.

16Given the seriousness of your offending, I am satisfied that I should impose a sentence of imprisonment in this instance. 

17Would you please stand Mr Condotta? 

18I am satisfied that you should be detained for a further period of 30 days in addition to that period which is reckoned as time served in this instance.  To achieve that effect, I propose to impose a sentence ‑ is the time served 294 days?

19MS MANDIE:  Yes it's actually 294, yes including yesterday but not today, yes.

20HIS HONOUR:  294.

21So I propose to impose a sentence of imprisonment of 324 days in respect of which 294 days are to be reckoned as time served.  That will be a straight sentence.

22I will disqualify you from driving and from obtaining a licence for the minimum period required by the law, namely 12 months from this day.

23I intend to impose the community corrections order which you have indicated to the community corrections assessment officer you are prepared to submit yourself to.  There will be an order for a period of 12 months.  It will contain the conditions as set out in the order namely that you undergo as directed by those supervising your treatment with respect to alcohol and drugs, treatment with respect to programs to reduce the risk of offending and supervision by the Office of Community Corrections.

24Now do you accept your obligations under that order? 

25OFFENDER:  Yes, Your Honour.

26HIS HONOUR:  You need to understand that that order will commence upon your release in 30 days and will continue for a period of 12 months and if you breach the order, the breach of the order carries with it a potential sentence of imprisonment of three months and equally, you can be resentenced by myself.  So there are significant sanctions associated with the order.

27Mr Condotta, it really is for you whether you are going to turn your life around or whether you are just going to spiral continually down and out of control.  So you shouldn't see this order as being mere punishment although it does involve an aspect of punishment.  It also involves an aspect of those managing you in the community assisting you to deal with the problems that have arisen in your life and try to get control over them.

28I will make the order that has been sought with respect to the forensic sample.  It is an order by consent.  I need to explain to you that when the sample is sought it will be taken by way of a mouth scraping which is a non-invasive procedure but if you fail to comply with that, appropriate and reasonable force can be employed to secure a blood sample.

29Ms Mandie is there anything else that I need to attend to? 

30MS MANDIE:  Your Honour just one thing I want to check and I'm sorry I should know this, but I don't off the top of my head whether, Your Honour needs to give a sentence to the individual charges or whether the global sentence is sufficient.

31HIS HONOUR:  What I've ‑ having regard to the circumstances of the offending which occurs out of the one incident.

32MS MANDIE:  Yes.

33HIS HONOUR:  I'm satisfied that an aggregate sentence should be imposed.

34MS MANDIE:  And I agree with that, Your Honour but I just wanted to check.

35HIS HONOUR:  I should say but for your plea of guilty, Mr Condotta, I would have sentenced you to a period of 18 months imprisonment together with a community corrections order upon your release if you'd been assessed as being suitable for that period.

36OFFENDER:  I understand Your Honour.

37HIS HONOUR:  Yes so the period in which the community corrections order will continue will be a period of 12 months and we've got the documentation that needs to now be signed. 

38Now Mr Condotta, just checking for me, upon your release you'll be initially residing with your father in Hastings.

39OFFENDER:  Yes.

40HIS HONOUR:  Now that will mean that you'll be required to report to the community corrections office in Frankston which I think is the closest community corrections office from Hastings.

41MS MANDIE:  Your Honour should an address be provided for the offender?  I note on the order there isn't ‑ sorry maybe I haven't kept reading.  It just says no fixed abode at the top or it's misspelt.

42HIS HONOUR:  I note from the assessment, the assessment has Mr Condotta residing with his father in Hastings but at this stage, the order itself doesn't contain an address? 

43MS MANDIE:  Not that I can see Your Honour but my friend.

44MS SHEPHERD:  No.  Not for Mr Condotta because it hasn't been updated on the system.

45HIS HONOUR:  Yes.

46MS SHEPHERD:  I can provide those details if Your Honour wishes to.

47MS MANDIE:  I think so.

48HER HONOUR:  Yes.  I think it probably should be recorded in the order.

49MS SHEPHERD:  May I approach the dock, Your Honour.

50HIS HONOUR:  Of course.  What we'll do is we will notify Corrections as to the address and it will be updated.  I'm told it can be updated internally.

51MS MANDIE:  Thank you.  And Your Honour, could that order then be provided to the OPP.

52HIS HONOUR:  Yes, of course.  So that the address, the Hastings address is.

53MS SHEPHERD:  His residential address is 1 Isis Place Hastings, 3915.

54HIS HONOUR:  So thereby an updated order generated with that address and I'll direct that it be provided to both Mr Condotta and to the Office of Public Prosecutions.

55MS SHEPHERD:  As Your Honour pleases.

‑ ‑ ‑

APPENDIX 1

Court Ref No. CR-16-01371

Indictment No F12366356b

THE COUNTY COURT
STATE OF VICTORIA  
AT MELBOURNE
CRIMINAL DIVISION

THE DIRECTOR OF PUBLIC PROSECUTIONS

- V –

THOMAS JOHN CONDOTTA

PROSECUTION PLEA OPENING

Date of Document:  5 August 2016
Filed on behalf of:  Director of Public  Prosecutions
Prepared by Counsel on behalf of:   Ms Deborah Mandie, Counsel
John Cain  Solicitor Code 7539
Solicitor for Public Prosecutions   Tel. [phone]
565 Lonsdale Street  Direct: 9603 2620

MELBOURNE

Background

1. Thomas CONDOTTA, the offender, was born 20 January 1993 and is 23 years old, 22 years old at the time of the offending.

2. From around January 2015, Mr CONDOTTA resided from time to time at a house at 12 Martin Street, Hastings.

3. On 11 April 2015 there was a fire in the front bedroom at the Martin Street house, the bedroom belonging to Mr Dean Woodham.

4. As a result of investigations by Detective  Leading Senior Constable SWEETMAN, the informant in this matter, Mr CONDOTTA became the main focus of police investigations into the fire.

5. Numerous attempts were made by police to arrest the offender at different addresses in Hastings and Tyabb areas. The offender was sighted numerous times but decamped from police jumping fences to get away.

6. At around 10 am on 25 May 2015 in Hastings, the offender was driving a vehicle, a Nissan Patrol 4WD, with his friend Dean WADDINGTON in the passenger seat. The informant recognised the vehicle as that belonging to WADDINGTON.

7. In summary, the offender was directed to stop his vehicle  by police officers, driving a police vehicle. The offender immediately sped away from the police vehicle which pursued him. The offender knew, or ought reasonably have known, that the officers had directed him to stop his vehicle and that the officers were then pursuing his vehicle, but he drove his vehicle dangerously or negligently whilst being pursued (Charge 2 Dangerous or Negligent Driving whilst pursued by Police). The offender, by driving erratically, recklessly endangered the life of his passenger Dean WADDINGTON (Charge 3 Reckless Conduct Endangering life).

Police Pursuit and Reckless Conduct Endangering Life

8. WADDINGTON says that on the morning of 25 May 2015, the offender was driving in WADDINGTON’s company. The offender was driving WADDINGTON’s mother’s Nissan Patrol and they were reversing out of a car space to leave Bunnings in Hastings, when they saw the informant, Detective SWEETMAN in an unmarked car.

9. On this morning the informant, DLSC Nicholas SWEETMAN, was in the company of Detective Sergeant Melissa NIXON in the front passenger seat and DSC Luke WALSH behind, in an unmarked Ford Territory, driving into the entrance of Bunnings Warehouse in Hastings.

10. The informant observed the Nissan Patrol and recognized it as a vehicle belonging to WADDINGTON. As he drove closer, he then observed WADDINGTON in the passenger seat and CONDOTTA driving the vehicle. DS NIXON says that on this morning she recognized WADDINGTON’s vehicle, WADDINGTON in the passenger seat and CONDOTTA driving.

11. DSC SWEETMAN immediately did a U-turn and activated the blue and red police lights and siren.

12. WADDINGTON had noticed the unmarked police car and mentioned it to the offender, saying ‘There’s Nick’ and telling the offender to stop as the police car seemed to be trying to corner them and stop them from driving off, having activated the police lights.

13. The offender then said (and did) the following in the presence of WADDINGTON, whilst driving away from police:

1. The police attempted to block them off and the accused drove off, though WADDINGTON told him to stop the car;[1]
2. “we’re fucked, I’m not going back to jail” and he took off;[2]
3. He said that he was fucked and he wasn’t going back to jail and he took off out of the Bunnings driveway and into the Frankston/Flinders Road and he repeated this a number of times;[3]
4. At this time  after seeing the police car activate its lights, the accused said he wasn’t going back to jail and that he was “questioned over another incident being arson and…that he was going to jail for it. He was on the run.”[4]

14. A chase ensued as the police car followed them.

15. The offender immediately accelerated away and headed South into the Frankston/Flinders Rd. He then swerved left into a service lane travelling at around 80 km/h.

16. He then slowed a little and turned hard right into a side street, Haddock Street.

17. At this time the police vehicle was around 20 metres behind the offender’s vehicle. The police vehicle had the lights and sirens activated.

18. The offender suddenly veered off into a paddock (or vacant industrial land), overgrown and with small trees. The offender then circled around the paddock and slowed and then turned in a U-turn to his right, back toward the police car and the offender drove his vehicle straight at the unmarked police vehicle. DS Nixon states that the offender was driving directly at her door (the passenger door of the police vehicle) and she was concerned the offender would ram the police vehicle. DS Nixon also states that she observed that WADDINGTON appeared to be struggling with the steering wheel with the offender attempting to pull the steering wheel back toward the police vehicle.[5]

[5] DS NIXON, Deps 99-100

19. The Nissan’s approach caused the informant to stop the police vehicle to assess the best evasive action. 

20. The offender drove the Nissan within 5-10 metres of the passenger side of the police vehicle and suddenly veered left, then drove in front of the police vehicle and headed out of the paddock and back toward Haddock Street. 

21. The police car was in pursuit. At this stage, DS NIXON activated her mobile phone video recorder, recording the pursuit until the offender reached a fallen tree and drove over it. The recording clearly shows the police in pursuit of the accused in the Nissan Patrol, the footage taken from inside the police vehicle and the terrain the accused then led the police vehicle to drive onto in pursuit.

22. The offender then drove off the road and onto bush land parallel to the railway line and over a fallen tree, at which point the police terminated the pursuit. DS NIXON observed the accused drive down an embankment and launch over the railway line.

23. Ultimately, other police were called and the vehicle was located, bogged in mud alongside the railway tracks, both WADDINGTON and CONDOTTA having abandoned the vehicle.

24. All of this conduct constitutes charges 1 and 2 on the indictment.

Related Summary Offences

25. It was further alleged that on 25 May 2015 in Hastings, Mr CONDOTTA failed to stop his vehicle, knowing he had been given a direction to stop (transferred Charge 4 Fail to Stop Vehicle on Police Request, s.64A Road Safety Act).

26. On the same date, it was further alleged that Mr CONDOTTA drove his vehicle in a manner dangerous to the public (transferred Charge 6 Drive in a Manner Dangerous,, s.64(1) Road Safety Act).

27. Related summary charges 4 and 6 are withdrawn.

28. The accused does not hold a driver’s licence and has never been licensed under the Road Safety Act 1986 (Vic).[6]

[6] A certificate under s.84(1) Road Safety Act 1986 establishing this fact was served under Notice of Additional Evidence on 5 August 2016

29. As such, on 25 May 2015, the offender drove a motor vehicle on Kanowna Street without being the holder of a driver’s licence, or any permit, authorization or exemptions (transferred Charge 8 Unlicensed Driving, s.18(1)(a) Road Safety Act).

30. The offender pleads guilty to related summary charge 8.

31. On another date, 23 June 2015, it was further alleged the offender drove a motor vehicle on highway without being the holder of a driver’s licence, or any permit, authorization or exemptions (transferred Charge 10 Unlicensed Driving, s.18(1)(a) Road Safety Act). 

32. This charge 10 has been withdrawn.

33. Mr CONDOTTA was further charged with breach of a personal safety intervention order on 11 April 2015 (Charge 14 Breach of Personal Safety Intervention Order, s.100(2) Personal Safety Intervention Orders Act ).

34. This charge 14 is withdrawn.

Maximum Penalties

35. Reckless conduct (erratic driving) endangering life – 10 years (Charge 2, s.22 Crimes Act)

36. Dangerous driving whilst pursued by police – 3 years (Charge 1, s.319AA Crimes Act)

37. Unlicenced Driving - 25 penalty units or 3 months imp (Summary charge 8, s.18(1)(a) Road Safety Act)

Prior Convictions

38. The offender has numerous prior convictions – Criminal Record as at 5 August 2016.

Victim Impact Statement

39. The victim, Dean WADDINGTON is being advised of his rights. Prosecution will advise as to whether a victim impact statement will be provided. Any statement provided will be provided as soon as possible.

Sentence Indications

40. To be advised.

Forensic Sample Order

41. An order is sought pursuant to s.464ZF for a forensic procedure following the commission of a forensic sample offence (and indictable offence). There has been no forensic sample previously provided.

Mandatory Licence Disqualification

42. Pursuant to s.89(3)(c) Sentencing Act 1991, if a person is found guilty of an offence under s.319AA Crimes Act, the Court must, where the person is not the holder of a licence, disqualify him from obtaining one for a period of time specified by the Court, not being less than 12 months.

43. Pursuant to s.89B Sentencing Act 1991, the period of disqualification specified under s.89(3) commences on the day that the order imposing it is made or on a later day that the court specifies.

s.6AAA

44. Pursuant to s.6AAA Sentencing Act 1991, the court to state sentence that would have been imposed if a guilty plea had not been entered.

Serious Offender provisions

45. Not applicable.

PSD

46. The offender was arrested, charged and remanded for this matter on 24 June 2015. He has remained in custody since that date.

47. However, on 19 October 2015, the offender was sentenced to a total effective sentence of 3 months imprisonment on other charges (intentionally damaging property, breach of an intervention order and threatening to inflict serious injury). At the time of sentence, 117 days already served were declared as pre-sentence detention in relation to those matters. The sentence expired on the day of sentence (time served).

48. The period of pre-sentence detention in the current matter is therefore from 20 October 2015 to 7 August 2016 which is 292 days.

49. A copy of the sentence/remand report will be provided to the court.

Deborah Mandie

Trial Prosecutor

5 Aug 2016