Director of Public Prosecutions v Cuschieri

[2022] VCC 1716

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
 Not Restricted
Suitable for Publication

Case No. CR-22-00837

DIRECTOR OF PUBLIC PROSECUTIONS

v

JONATHON CUSCHIERI

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2022
DATE OF SENTENCE:	13 October 2022
CASE MAY BE CITED AS:	DPP v Cuschieri
MEDIUM NEUTRAL CITATION:	[2022] VCC 1716

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Theft – Conduct endangering life – Aggravated offence of recklessly exposing an emergency worker to risk by driving – Aggravated offence of intentionally exposing an emergency worker to risk by driving – Resisting an emergency worker on duty – Possession of a drug of dependence – Handling stolen goods – Drive while disqualified – Drive with prescribed concentration of drug blood within three hours – Deal with property suspected proceeds of crime – Drug related offending – Moderately institutionalised offender – Relevant criminal history – Verdins principles 5 and 6 – Poor prospects of rehabilitation – COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958 ss 22, 31(1)(b), 73(1), 74(1), 88, 195, 317A(1)(a), 317AD(1)(a); Road Safety Act 1986 ss 31, 49(1)(i); Sentencing Act 1991 ss 6AAA, 18.

Cases Cited:Worboyes v The Queen [2021] VSCA 169; The Queen v Jaeger [2020] VSCA 116.

Sentence:                  Imprisonment for a period of 4 years and 3 months with a non parole period of 2 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms F Holmes	The Office of Public Prosecutions
For the Accused	Mr J McGarvie	Stary Norton Halphen

HIS HONOUR:

Introduction

1Jonathon Cuschieri, you have pleaded guilty to:

(a) one charge of theft, contrary to s 74(1) of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 10 years imprisonment (Charge 1);

(b) one charge of conduct endangering life contrary to s 22 of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (Charge 2);

(c) one charge of aggravated offence of recklessly exposing an emergency worker to risk by driving contrary to s 317AF(1)(a) of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (Charge 3);

(d) one charge of aggravated offence of intentionally exposing an emergency worker to risk by driving contrary to s 317AD(1)(a) of the Crimes Act, which carries a maximum penalty of 20 years imprisonment (Charge 4);

(e) one rolled up charge of resisting an emergency worker on duty contrary to s 31(1)(b) of the Crimes Act, which carries a maximum penalty of 5 years imprisonment (Charge 5);

(f) one rolled up charge of possession of a drug of dependence contrary to s 73(1) of the Crimes Act, which carries a maximum penalty of 1 year imprisonment if not related to trafficking or 5 years imprisonment in any other case (Charge 6); and

(g) one charge of handling stolen goods contrary to s 88 of the Crimes Act, which carries a maximum penalty of 15 years imprisonment (Charge 7).

2You have also pleaded guilty to the related summary offences of:

(a) drive whilst disqualified, contrary to s 30(1) of the Road Safety Act 1986 (‘Road Safety Act’), which carries a maximum penalty of 2 months imprisonment (Summary Charge 25);

(b) driving with prescribed concentration of drug – blood (within 3 hours) contrary to s 49(1)(i) of the Road Safety Act, which carries a maximum penalty of 3 months imprisonment (Summary Charge 37); and

(c) deal property suspected proceeds of crime contrary to s 195 of the Crimes Act, which carries a maximum penalty of 2 years imprisonment (Summary Charge 38).

3You have also admitted your Criminal Record.

Circumstances of the offending

4A prosecution opening was tendered on the plea and may be summarised as follows:

5You were 31 years old at the time of the offending and you were with Tayla Millar, then a 21 year old female who resided at an address in Collingwood.

6On Tuesday 8 February 2022, at approximately 9.55pm, police were conducting static observations of the McDonald's Restaurant located at 606 Warragul Road, Malvern East after observing what appeared to be a drug affected female, Ms Millar, loitering in the carpark.

7At approximately 9.58pm you were observed entering the car park of the McDonald's in a stolen white coloured 2015 model BMW X6 M50 wagon. You were the sole occupant of the vehicle at the time and reversed into a parking bay outside the main entry to the restaurant. This was captured on CCTV footage at the McDonald’s restaurant.

8The vehicle was stolen on the morning of 7 February 2022 and was worth approximately $120,000 (Charge 1 – Theft).

9At the time of you driving the stolen white BMW wagon into the McDonald’s carpark, it was bearing stolen registration plates 'ASH398' on the front and rear (Charge 7 – Handling stolen goods).

10Ms Millar was observed to exit the McDonalds restaurant carrying food and drink and attend at the front passenger window of the car you were driving. She passed the food and drink in through the window and then got into the front passenger seat.

11At approximately 10.04pm, you left the McDonald's car park in the stolen white BMW wagon with Ms Millar in the front passenger seat and travelled south on Warragul Road to the Princess Highway.

12You were followed at distance by detectives who were in an unmarked police vehicle.

13You then drove through various streets in Oakleigh, Clayton, Noble Park, Dandenong North and Narre Warren whilst being followed at distance. Your driving behaviour was generally compliant with the road rules and posted speed limits.

14You attended the vicinity of the Fountain Gate Shopping Centre where you performed numerous U-turns in quick succession around the roadways directly outside the shopping centre. Police believed you were assessing if you were being followed. You left the area at a fast speed and observations of you were momentarily lost.

15Approximately 10 minutes later, you were observed by patrolling uniform units on the South Gippsland Highway in Cranbourne travelling at a fast speed. It is at this point that the conduct that constitutes Charge 2 – conduct endangering life –  commences.

16The Police Air Wing took up aerial observations of you within the stolen vehicle.

17You drove the stolen car into a car wash bay in Thompsons Road, Cranbourne and as police members approached the vehicle, you observed them and drove around them and again drove off at speed.

18The vehicle avoided stop sticks which were deployed around this time by the uniform police members.

19You then drove through various suburbs including Dandenong, Hampton Park, Noble Park and into the eastern suburbs, Rowville, Mulgrave, Glen Waverley and Burwood whilst still under observation of the Police Air Wing.

20You became increasingly reckless and dangerous in your manner of driving. Your speed ranged from 130 km/h up to 200 km/h and you proceeded through numerous red lights. All driving conduct was captured on Air Wing CCTV.

21You approached the Glen Shopping Centre on Springvale Road, Glen Waverley and again began performing various U-turns believed to be for the purpose of assessing if you were being followed by police.

22You identified an unmarked police vehicle and then drove south bound down the wrong side of Springvale Road at speed into oncoming traffic forcing some vehicles to take evasive action to avoid a collision for approximately 600 metres. You conducted another U-turn and travelled north along Springvale Road at a fast speed.

23Stop sticks were put out at the intersection of Highbury Road, Glen Waverley. However, you observed them and avoided them. A pursuit was then declared owing to the nature of the driving and the fact that you were overtly aware of police presence.

24You continued to drive at high speeds and drove through multiple red lights causing significant danger to the public.

25You travelled to the Eastern Freeway in Nunawading where you turned westbound to head into the city. You repeatedly reached speeds of 200km/h to 240km/h during this time. The Police Air Wing was still observing you and providing updates to ground units.

26You then entered the suburbs of Collingwood, Fitzroy and Carlton where you appeared to be driving around the back streets of the area possibly trying to get to Ms Millar’s house. You decreased his speed at this point in time.

27At around 11.55pm you travelled south bound along Wellington Street, Collingwood and as you approached the intersection of Victoria Parade, stop sticks were used successfully with all four tyres of your vehicle impacted. This was captured on Body Worn Camera by Constable Amanda Chimeton.

28You then turned off the vehicle’s headlights and increased your speed dramatically and dangerously as you turned south into Punt Road, Richmond.

29You were being followed by several police vehicles with blue and red flashing lights and sirens activated but continued to drive at speed and through red lights as you turned into Wellington Parade, East Melbourne toward the CBD. You were driving at a speed estimated to be 80-90km/h and swerving in and out of traffic.

30You drove west along Flinders Street and straight through a red light at Exhibition Street at a fast speed without braking. You narrowly avoided a catastrophic collision with a civilian vehicle travelling north through the intersection on a green light.

31You were still driving without headlights on and at speed. By now the vehicles tyres were beginning to deflate rapidly and your vehicle was appearing to lose traction with the roadway.

32You had no regard for any road rules with police still following you in pursuit. You turned south into St Kilda Road swerving in and out of traffic and at speed, before turning east into Toorak Road. It is the above facts in combination that relate to  Charge 2 – conduct endangering life.

33You turned north into Millswyn Street which had numerous speed humps and the BMW struggled to maintain traction with the road. You continued to the end of the street before turning west into Domain Road, Melbourne. At this time Domain Road was a dead end road owing to construction work on the metro tunnel.

34At around 12.04am on 9 February 2022, you were followed into Domain Road by an unmarked Manningham Crime Investigation Unit vehicle, a Hyundai Sonata containing Detective Acting Sergeant (‘D/A/Sgt’) Pongho and Detective Senior Constable (‘D/S/C’) Reitman and a marked Fitzroy Uniform unit, a Volkswagen Passat containing Senior Constable (‘S/C’) Firmin and First Constable (‘F/C’) Kluver.

35As you reached the dead end of the road outside number 121, you performed a U-turn. The Manningham unmarked police vehicle activated its red and blue flashing lights and siren and angled the vehicle at a 45 degree angle.

36In your efforts to flee, you drove past the police vehicle and collided with the front left panel, wheel arch and tyre of the vehicle with the front left-hand side of the BMW causing minor damage to the police vehicle (Charge 3 – Aggravated offence of recklessly exposing an emergency worker to risk by driving).

37The marked Fitzroy Police vehicle, which also had its red and blue flashing lights and siren activated, had then been positioned behind the unmarked vehicle and front on with you in the stolen vehicle.

38You depressed the accelerator heavily and rammed the marked Fitzroy Police vehicle head on causing a significant impact. The collision caused extensive damage to both vehicles and rendered the police vehicle inoperable. The force of the collision caused your vehicle to become wedged into the front end of the police vehicle (Charge 4 - Aggravated offence of intentionally exposing an emergency worker to risk by driving).

39The four police members exited the vehicles and approached you. You were still seated within the stolen vehicle and revving the engine in an effort to ram your way through the marked police vehicle. D/S/C Reitman immediately smashed the front passenger window with his baton before attending at the driver's window with S/C Firmin and D/A/Sgt Pongho. D/S/C Reitman used his baton to smash the window and made demands for you to turn off and exit the vehicle. You ignored him. S/C Firmin sprayed you with OC spray. Police managed to eventually open the vehicle doors and you were physically extracted from the vehicle and arrested. You initially resisted the three members by refusing to surrender and not putting your hands behind your back when on the ground (Charge 5 – Resist an emergency worker on duty).

40Ms Millar was also detained and later released pending enquiries.

41At the time of the offending, your driver licence was disqualified (Summary Charge 25 – Drive while disuqalified).

42A search of the stolen vehicle located a Tommy Hilfiger satchel bag in the front driver's side foot well within which were numerous identity documents in your name.

43Numerous other property items were located in the vehicle including a Garmin Navman, a BMW car key, a Maserati car key, various keys and fobs and an Apple Laptop. There were also identity documents not in your name (Summary Charge 38 – Dealing with property suspected of being the proceeds of crime).

44Also located within the satchel was approximately 6 grams of Methylamphetamine and approximately 1 gram of Heroin (Charge 6 – Possession of drugs of dependence).

45You were transported to Box Hill Police Station where you appeared to lapse in and out of consciousness and were very unsteady on your feet.

46Ambulance Victoria were called and took you under police guard to the Box Hill Hospital for treatment. A blood sample was taken at 2.26am, which indicated that you were under the influence of Methamphetamine (Summary Charge 37 – Driving  with prescribed concentration of drug – blood (within 3 hours)).

47When you were released and taken to the Doncaster Police Station you refused to be interviewed and were charged.

Nature and gravity of the offending

48Your driving conduct, including the confrontation with the police over the period of an evening into the early hours of the next day can only be described as very serious and very dangerous.

49More specifically, Charge 2, conduct endangering life, is in my view a serious example of that offence, as sensibly conceded by your counsel. The offending occurred over an extended period of time and over a large distance. You reached speeds of up to 240 km/h, you disobeyed traffic signals and you had a near miss with another vehicle which was travelling through an intersection on a green light. It seems only by fortune that no other person was injured or killed as a result of your driving. You clearly had no regard for the other road users or your passenger; your only motivation was to avoid apprehension by the police.

50The aggravated offences of recklessly and intentionally exposing emergency workers to risk by driving, Charges 3 and 4, are inherently serious offences reflected in the maximum penalties imposed by Parliament being 10 and 20 years respectively. In this instance the particulars of aggravation of those offences is that you were driving a stolen vehicle. Charge 4 in this instance resulted in extensive damage to the police vehicle as your conduct was to drive head on into the police vehicle in a desperate last attempt to flee from the police. That collision occurred following a more minor collision with the other police vehicle, the subject of Charge 3. In each case the police officers who were in the vehicles at the time of the respective collisions were uninjured and the offences were of short duration. Nonetheless, your motivation was to continue to avoid being apprehended and you had no regard to the welfare of the police who remained in their respective vehicles.

51Your driving was made more dangerous by the fact that you were driving with methamphetamine in your system, undoubtedly influencing your already erratic and dangerous conduct.

52As to Charge 6, I am satisfied on the evidence that the possession of the drugs was not for the purposes of trafficking and thus the lower maximum penalty applies.

Personal circumstances

53You are currently 31 years of age. You were born in Melbourne, the middle child in a sibship of three, to parents who separated when you were very young. You lived with your mother, who worked multiple jobs to support you and your siblings, and rarely saw your father. However, approximately two years ago, whilst in prison, you started writing to your father and have developed a relationship with him. Growing up, you witnessed domestic violence towards your mother from one of her partners. You otherwise enjoy a close relationship with your mother.

54You have a three year old son with a very serious health condition; you see him regularly when not in prison and maintain an on-again, off-again relationship with his mother.

55You grew up in the Frankston North and Seaford area where you attended several primary schools. You encountered difficulties in your schooling, repeating some of Year 8 and being put on probation in Year 9. You were diagnosed with ADHD as a young child and were put on dexamphetamines for this condition around age four or five, and you remained on medication until you left school in Year 9 at age 15. You went on to complete two months of a furniture making pre-apprenticeship, after which you commenced at TAFE. You were suspended on two occasions and then remanded into youth detention. You have never maintained regular employment, nor have you ever held a driver licence.

56Regarding your drug use, you started smoking methamphetamine when you were 15, escalating to daily use in your twenties. Whilst on remand, you have been medicated on 25mg of methadone daily at your own request. Over the years you have also occasionally used GHB. As noted above, you were drug affected at the time of the offending.

57You were assessed by psychologist Mr Jeffrey Cummins in August 2022. Mr Cummins prepared a report dated 29 August 2022 which expands upon your history of drug use and notes you were smoking more methamphetamine around the time of offending due to issues relating to your older sister. Approximately two weeks prior to the offending, your sister was struck by a motor vehicle suffering serious injuries. You stated to Mr Cummins that at the time of the offending, you had not been informed whether or not she would survive.

58Mr Cummins concludes that you do not present as suffering from adult ADHD, but suggests you are likely suffering from a recurrent Major Depressive Disorder of moderate severity. He is of the opinion that a term of imprisonment will weigh more heavily on you than it would on a person of normal mental health, and that there is a serious risk that imprisonment could have a significant adverse effect on your mental health given you suffer from a depressive condition. Mr Cummins concludes that these issues take on a greater relevance given you also present as being moderately institutionalised, having been in and out of the custodial setting for most of your adult life.

59You underwent a neuropsychological assessment in 2017 with clinical neuropsychologist Ms Susan Carey, who concluded in her report dated 24 October 2017, that you are a man of ‘mildly below average cognitive abilities, with an idiosyncratic weakness in some verbal abilities’. She conducted testing which showed you have an IQ within the low-average range. She is of the opinion that the nature and pattern of your cognitive deficits are not consistent with an acquired brain injury associated with drug or alcohol abuse; rather, they are likely to be developmental in nature and augmented by your discontinuation of formal education. Ms Carey makes what is perhaps an obvious but pertinent observation by stating that your methamphetamine use disorder is highly associated with your offending- both by reducing your ability to make sound judgements when substance affected and by committing various offending behaviours to fund your drug use.  

60You have an extensive criminal history commencing in 2009. Your prior history consists of very similar offending encompassing, among other things, theft (often of motor vehicles), drug offences, burglary, dangerous driving whilst pursued by police, and reckless conduct endangering life. You have been in and out of custody since the age of 18.

Sentencing considerations

61Mr McGarvie, who appeared on your behalf, highlighted a number of matters in mitigation.

62First is your plea of guilty.  While the prosecution case was strong, your plea of guilty still carries utilitarian value. It was entered at the earliest opportunity and demonstrates your acceptance of responsibility and willingness to facilitate the course of justice. Your plea avoids the need for a trial and most importantly, your plea has spared the victims from having to give evidence.

63As to remorse, while I accept that you have expressed some measure of regret for your conduct to Mr Cummins, the evidence does not demonstrate that you have meaningfully recognised the impact of your conduct on the victims, and the enormous risk you exposed the community to by your driving.

64As your plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system, it carries additional weight and this must be reflected in a further amelioration in sentence.[1]

[1] Worboyes v The Queen [2021] VSCA 169 at [39].

65You have served your time on remand under onerous prison conditions as a result of the COVID-19 pandemic and I take this into account. While the conditions have been improving, there is uncertainty as to when the prison environment will revert to normality. As such I accept that the additional burden you have endured over your time on remand as a result of the restrictions, will persist for some time.

66Mr McGarvie submitted that, due to your psychological diagnosis, Verdins principles 5 and 6 are enlivened. The evidence on this point from Mr Cummins was not challenged and I accept that Verdins principles 5 and 6 should be given weight  in the sentencing calculus.

67Mr McGarvie highlighted your low-average IQ, with comprehension being in the borderline range. While I take into account as part of your circumstances that you function ‘mildly below average cognitive abilities’, in my view the evidence does not allow for a finding that your cognitive deficits contributed to the offending in a way that makes you less blameworthy for your conduct.

68I turn to your prospects of rehabilitation. Given your history of similar offending over a long period , your prospects in my view can only be assessed as poor. As was discussed at the plea hearing, you have to an extent become institutionalised with only periods of months in the community before you reoffend. You clearly have been unable to break the cycle of drug use and offending despite being offered assistance via community correction orders and supervision on parole. Your lack of employment history and limited insight into your offending pose fundamental barriers to your prospects of reintegrating successfully into the community.

69However, in my view you are also at an age where it is not uncommon for someone with your history to begin to realise the need to make significant changes. It is self-evident that you must overcome your longstanding drug addiction and you must accept the supports that are offered both in custody and in the community. Thus, while your prospects may be poor, in my view in all the circumstances they are not hopeless.

70As correctly conceded by your counsel, deterrence both general and specific remain prominent in the sentencing discretion. Protection of the community and denunciation of your conduct are also very relevant sentencing considerations in the circumstances. As the Court of Appeal noted in The Queen v Jaeger in relation to driving offences placing police and community at risk: ‘[t]he message needs to be sent clearly and unequivocally to like-minded individuals that conduct such as the applicant’s simply cannot – and will not – be tolerated.’[2]

[2] [2020] VSCA 116 at [36].

71It was submitted on your behalf that a long parole period would provide you with supervision and assistance in the community, which are protective factors. While I accept that submission I must also balance the other sentencing considerations I have noted above.

Sentence

72Mr Cuschieri, would you please stand.

73Jonathon Cuschieri, on Charge 1, Theft of the motor vehicle, you are convicted and sentenced to 12 months imprisonment. On Charge 2, Conduct endangering life, you are convicted and sentenced to 3 years imprisonment. This is the base sentence. On Charge 3, the aggravated offence of recklessly exposing an emergency worker to risk by driving, you are convicted and sentenced to 18 months imprisonment. On Charge 4, the aggravated offence of intentionally exposing an emergency worker to risk by driving, you are convicted and sentenced to 3 years imprisonment. On Charge 5, resisting an emergency worker on duty, you are convicted and sentenced to 3 months imprisonment. On Charge 6 possession of a drug of dependence, you are convicted and sentenced to 1 month imprisonment. On Charge 7 handling stolen goods, you are convicted and sentenced to 2 months imprisonment.

74On Summary Charge 25, driving while disqualified, Summary Charge 37, driving with prescribed concentration of drug in your blood and Summary Charge 38, dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to 1 month imprisonment on each charge.

75I direct that 3 months of the sentence on Charge 3 and 12 months of the sentence on Charge 4 be served cumulatively on each other and on Charge 2 making for a total effective sentence of 4 years and 3 months imprisonment. I direct that you serve 2 years and 6 months before becoming eligible for parole.

76As Charge 1 involves the theft of a motor vehicle and Charges 2, 3 and 4 are serious motor vehicle offences, pursuant to s 89 of the Sentencing Act 1991 (the Sentencing Act) you are disqualified from obtaining a licence for a period of 3 years from today.

77Pursuant to s 18 of the Sentencing Act, I declare that 239 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

78Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 5 years and 9 months imprisonment with a non parole period of 4 years.