Director of Public Prosecutions v Delphin, Benjamin Alan and Taylor, Brendon
[2013] VCC 209
•19 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-02186
CR-12-03187
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN ALAN DELPHIN BRENDON TAYLOR |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 February 2013 | |
DATE OF SENTENCE: | 19 March 2013 | |
CASE MAY BE CITED AS: | DPP v Delphin, Benjamin Alan & Taylor, Brendon | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 209 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – plea – sentence – reckless conduct endangering life – reckless conduct endangering serious injury – theft – youthful offenders.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E. Ruddle | Office of Public Prosecutions |
| For Accused Delphin | Mr C. McLennan | Chris McLennan & Co. |
| For Accused Taylor | Mr M. Phillips | Victoria Legal Aid |
HER HONOUR:
Introduction
1 Mr Delphin and Mr Taylor, you have both pleaded guilty to a total of 14 Charges. These involve:
(a) Six charges of reckless conduct endangering life, the maximum penalty for each of which is 10 years' imprisonment;
(b) One charge of reckless conduct endangering serious injury, the maximum penalty for which is 5 years' imprisonment; and
(c) Seven charges of theft, the maximum penalty for each of which is 10 years' imprisonment.
The circumstances of the offending
2 The summary of the prosecution opening (as amended) was read into transcript as an agreed statement of fact. I do not propose to repeat all of the summary in my opening.
3 To summarise then, over a two day period, on 27 and 28 June 2012, you both engaged in a crime spree in the company of two to three other youths. One of the other youths was also charged.
4 The crime spree involved a number of police pursuits in the south-eastern suburbs, several of which were aborted due to the dangerous manner in which the vehicles were driven. Neither of you were licensed to drive. In your case, Mr Delphin, I was told that you were disqualified from driving. That has been confirmed today. You, Mr Taylor, were the holder of a learner's permit which has also been confirmed today. Whilst it appears that Mr Delphin was mostly driving, the charges were brought on the basis that you acted in concert.
5 As to Charge 1, reckless conduct endangering life: I was told that in the early hours of 27 June 2012, you, Mr Delphin, drove your unregistered Ford sedan with a flat rear tyre and no number plates in the Narre Warren area. Mr Taylor and two other youths were passengers. At approximately 2.38 am, police attempted to intercept the vehicle. You failed to stop. During the ensuing pursuit, you drove your vehicle at speeds of between 25 and 40 km/h, with the rear wheel rim giving off sparks. After turning into Clyde Road, you apparently deliberately drove on the wrong side of the road, over a distance of approximately 1.5 kilometres. This was without the vehicle's headlights operating. It appears that on this occasion, police terminated their pursuit due to the danger involved in driving down the wrong side of the road.
6 As to Charge 2, reckless conduct endangering life: At approximately 3.15 am, after police again tried to intercept the Ford sedan, you, Mr Delphin, drove the vehicle down the wrong side of Spring Hill Drive on to Thompsons Road and then on to the Narre Warren Cranbourne Road. This was again without the vehicle’s headlights operating.
7 On this occasion, you failed to stop, you disobeyed traffic lights and the vehicle was seen to swerve in and out of lanes. It was deliberately driven on the wrong side of the road, ostensibly to avoid police roadblocks.
8 As you later admitted when interviewed, during this and the earlier pursuit, the vehicle's headlights were turned off to deter police from pursuing the vehicle. According to the opening, many motorists took evasive action to avoid colliding with the Ford sedan.
9 The danger posed by this behaviour, your failure to comply with traffic signs, the speed at which the vehicle was driven, and the fact that it was driven erratically and through a number of roundabouts on the wrong side of the road, led to the police aborting their pursuit of your vehicle.
10 The vehicle was subsequently located after it was abandoned and two of the passengers, other than Mr Taylor, were arrested, but not before the vehicle was driven in the wrong direction down a freeway exit ramp and had narrowly avoided hitting a truck leaving the freeway.
11 As to Charges 3, 4, and 5, all theft offences: Later the same morning you stole another Ford sedan from a garage in Hallam (Charge 3). Later on, you stole a Holden Commodore, which had been parked at the Pakenham Railway Station (Charge 4) into which petrol worth $45.82 was pumped without payment (Charge 5). It was alleged that you, Mr Taylor, were driving the Holden Commodore when the petrol was stolen.
12 As to Charges 6 and 7, further theft offences: On 28 June 2012, you stole an oil can and motor oil valued at $31 from a 7-Eleven store (Charge 6 ) and, without paying for this, you pumped petrol worth $31.36 into the stolen Holden Commodore (Charge 7).
13 As to Charge 8, a further reckless conduct endangering life offence: On the same date, the Holden Commodore, driven by Mr Delphin in Dandenong, was detected travelling at 122 km/h in an 80 km/h zone. You failed to stop when police tried to intercept the vehicle which reached speeds of up to 150 km/h. The vehicle was seen to swerve across three lanes of traffic, drive through red lights and over footpaths and concrete median strips onto the wrong side of the road. At least 20 other vehicles were forced to take serious evasive action to avoid a collision. This was another pursuit the police were required to terminate due to the risk your driving posed to others.
14 As to Charges 9 and 10, further theft offences: on the same afternoon you stole five meat pies valued at $18.50 from a 7-Eleven store. Some 10 minutes later, while driving in a car park shopping centre, Mr Delphin drove up behind the victim who was walking to her vehicle. He then grabbed and pulled a handbag from her shoulder before accelerating the vehicle away. The handbag contained $150 in cash, a Visa card and other personal effects.
15
As to Charges 11, 12 and 13, further reckless conduct endangering life offences: Between 3.40 pm and 4 pm, police air wing footage captured the stolen Holden Commodore, on multiple occasions, driving through red lights and driving on the wrong side of the road. Video footage recorded by a police officer on his mobile phone also captured the vehicle travelling along Cheltenham Road at speed and travelling on the wrong side of the road toward this police officer. This was evidently during periods of heavy traffic when police estimated your vehicle to be travelling up to 120 km/h in an
80 km/h zone and 70 km/h zone as well. You have conceded that on this occasion many other vehicles had to take evasive action to avoid a collision and that during the police pursuit, you drove on the wrong side of the road to avoid police and other vehicles.
16 Some minutes later after your vehicle was observed to be travelling at an estimated speed of 130 km/h in a 80 km/h zone, police deployed stop sticks which caused the front and rear passenger side tyres to deflate. You apparently continued to drive the vehicle after a tyre had fallen off and drove on the incorrect side of the road and through a red light. You lost control of the vehicle with all wheels spinning at the intersection of Greens Road and Frankston Dandenong Road in Dandenong South. Due to the risk to other road users, police moved to apprehend you at this stage and they did this by boxing in the vehicle between two police cars.
17 As to Charge 14, a reckless conduct endangering serious injury offence: As police officers approached the Holden Commodore, another police officer was exiting from the passenger side of a police vehicle located behind the Holden Commodore. You, Mr Delphin, apparently made eye contact with her and then revved the engine hard and reversed the vehicle into the passenger door. The police officer’s leg was crushed between the door and the vehicle, causing soft tissue damage and deep bruising to her ankle and foot as well as bruising to her left arm.
18 You both resisted arrest, forcing police to deploy OC foam and several officers suffered injury whilst acting to subdue you.
19 Mr Taylor, you taunted police by laughing and telling them that you hoped that your mother had the opportunity to see you on the evening news. It is of concern that recently in the course of discussions with Youth Justice, you reportedly failed to demonstrate appropriate remorse or display victim empathy and laughed when reminded of the earlier comment to police. I will say more about this issue shortly.
20 Without going through each record of interview in specific detail, I note that to varying degrees you each made admissions about your role in the crime spree.
21 In your case, Mr Delphin, other than denying that you had resisted police after being intercepted, you appear to have been happy to acknowledge the offending and the driving behaviour observed by witnesses.
22 Notably, you also told police that, while travelling in the vehicle, you were under the influence of amphetamines and marijuana, claiming that you had smoked about 1 gram of amphetamine from a glass pipe and marijuana from a bong.
23
Your record of interview, Mr Taylor, consisted of a mixture of admissions and denials. You admitted stealing the Holden Commodore, stealing petrol and food for which you had not paid and being a passenger during the police pursuits on 28 June 2012. However, you denied involvement in the police pursuits the day before, you denied allegations of speeding, you sought to minimise the risk to other drivers arising from your co-offender’s driving on
28 June 2012and you denied the theft offences relating to Charges 5, 9 and 10 on the Indictment.
24
Notably, when the driving-related offences were committed, you were both
18 years of age and, as I have already indicated, unlicensed inexperienced drivers with younger teenagers in the vehicles and you were both likely affected by drug use.
25 I think it unnecessary to reiterate all of the aggravating features of the individual reckless conduct endangering life and/or serious injury offences, as your representatives have conceded in court that due to the circumstances in which each of these offences occurred, objectively speaking, they represent serious examples of this kind of offending.
26 Mr Delphin, you are now 19 years of age. Your criminal record is extensive. It involves, in the main, multiple dishonesty and driving offences. In addition to multiple thefts of motor vehicles, this offending history includes unlicensed driving offences, dangerous and careless driving offences and convictions for reckless conduct endanger life offences, one in 2010 and three in 2011.
27 I was told that the two reckless conduct endanger life offences, for which you were sentenced on 8 December 2011, also involved police pursuit of stolen vehicles driven by you. In short, your culpability in this offending is greater both because of your history of prior convictions for reckless conduct endanger life offending and your more significant role as the driver of the vehicles.
28 In all, prior to the commission of the current offences, you appeared on some 18 occasions in the Children’s Court. The record confirms that from an early age, with or without conviction, you have undergone multiple community, residential or detention orders for relevant offending. The reports from Youth Justice, which include the pre-sentence report ordered by me, indicate that the dispositions made include Youth Supervision, Youth Attendance, Youth Residential, Youth Residential Parole, Youth Justice Centre and Youth Parole Orders.
29 I was told that on 7 May 2012, you were released on youth parole with special conditions requiring you to attend drug and alcohol counselling and to participate in a Motor Vehicle Offending Program as directed by Youth Justice. Youth Justice reports that, while subject to this parole order, you attended most of the scheduled Youth Justice supervision appointments and one of the three schedule substance-abuse counselling appointments with the Youth Support and Advocacy Service, a service which has supported you in trying to address drug abuse issues, particularly cannabis and ice abuse since 2007. Prior to be remanded in custody, I was told, however, that you had not commenced the Motor Vehicle Offending Program, to which you had been originally directed.
30 Clearly, the rehabilitative aspects of the Youth Justice dispositions afforded from time to time have not modified significant criminal behaviour that, in view of the most recent offending, poses a very real threat to the safety of other members of the community.
31 For instance, I was told that during parole, notwithstanding your engagement with Youth Justice and prior to the commission of the current spate of offences, you committed two burglary offences. A safe containing some $6000 was taken from a factory; money you say was used to maintain your drug habit.
32
In any event, on 28 June 2012 you were taken into custody and held for
five days in an adult prison until 2 July 2012. Youth Justice reports that parole was revoked and you were returned to Youth Detention due to your perceived impressionability and vulnerability within the adult prison system.
33
The offending during the period of parole was dealt with by a Magistrate on
17 August 2012. I was told that you are now serving concurrent sentences in Youth Detention which are due for completion on about 29 August 2012. However, it seems that behavioural management issues and the perception that you appear to influence negative behaviours in others, has led to your removal to a secure unit at Malmsbury Youth Justice Centre.
34 Unless otherwise directed, s.33 of the Sentencing Act 1991 requires that any term of detention imposed today be served concurrently with the uncompleted sentence of detention and under s.35; any period held in custody in relation to this offending must be reckoned as a period of detention already served under the sentence of detention.
35
If a concurrent sentence of imprisonment is imposed in respect of the
re-offending, s.33 requires that this be served in an adult prison until the sentence of imprisonment is completed. However, as submitted by the prosecution, the time spent in Youth Detention and in serving the sentence of detention, does not count as pre-sentence detention in respect to any sentence of imprisonment imposed today; that you have been in detention since July 2012 which is a matter that brings into play the principle of totality, particularly where this detention will not count, in your case, as pre-sentence detention. I will explain how your sentence has been structured to accommodate this shortly.
36 For the time being, I note that it was conceded at the plea hearing that you played the most significant role in this offending. This was because you led the offending, you drove the stolen vehicles during the police pursuits and, if I accept as I have, Mr Taylor, a friend of your younger brother, only became involved at your urging. This is not to deny that your co-offender was a willing and active participant who supported the attempts to avoid police interventions and who has conceded his role in the theft offences.
37 It was also noted during the plea hearing that only one of the other younger passengers, a 16 year old co-offender, was charged. He had no prior convictions. He was sentenced in the Children's Court on 18 September 2012. Without conviction on one charge, each of reckless conduct endanger life and theft of a motor vehicle; and two charges of theft. This youth was placed on probation for 12 months. In addition to compliance with all core conditions, he was ordered to undergo drug and alcohol counselling.
38 The prosecution submitted, without contest from counsel, that parity was not an issue in respect to this co-offender's sentence.
39
You, Mr Taylor, recently turned 19. Your criminal history involves four prior appearances in the Children's Court; two in 2011 and two in 2012 for mainly dishonesty, drug and driving offences, an offending history you attribute to drug abuse. Relevantly, this earlier offending included multiple charges for theft of a motor vehicle, the last of which was heard on 1 June 2012. Without conviction, you were released on a good behaviour bond expiring on
21 September 2012.
40
The re-offending on 27 and 28 June breached both the good behaviour bond and an earlier Youth Supervision Order imposed without conviction on
23 March 2012for a period of 12 months. I was told that the Youth Supervision Order was subsequently discharged. In any event, unlike your
co-offender, you have not been required to serve a period in Youth Detention. As a result, you have been remanded in adult custody since 28 June 2012.
41 In mitigation of your sentences, I was told that, subject to discussion concerning the nature of the charges, an intention to plead was indicated at the committal mention stage of this proceeding. You are each thereby entitled to substantial sentencing discounts because the pleas of guilty entered at an early stage have facilitated the course of justice. The discount received also recognises the utilitarian value of guilty pleas in sparing witnesses the inconvenience of a contested trial and the community the cost of the same.
42 The pleas of guilty reflect a level of remorse. In your case, Mr Delphin, there is evidence from Youth Justice to suggest that you appear to have taken responsibility for your actions, to have expressed remorse for the position in which you placed other road users and for the harm caused to the police officer and they also indicate that you have demonstrated appropriate victim empathy.
43 In your case, Mr Taylor, the question of whether you are remorseful is somewhat more problematic. However, Youth Justice has nonetheless concluded that the limited remorse displayed during recent discussions may be attributable to your immaturity.
44 As part of the sentencing process, I must also allow for the impact of these offences on the victims. The police officer, the subject of Charge 14 on the indictment, who was injured when you reversed your vehicle into the police vehicle, has submitted the only formal victim impact statement. Her statement, declared on 11 February 2013, indicates that the physical injury to her left foot has not fully resolved because her foot, she said, still aches, especially when walking or standing for long periods. Importantly, this police officer stated that, while trapped in the police vehicle, she thought she would die. She said she has since sought counselling to avoid further impact on her career and life.
45 Despite their failure to submit formal victim impact statements, I infer from the circumstances of, specifically each of the reckless conduct endangering life offences, Charges 1, 2, 8, 11, 12 and 13, that a number of police and other motorists at different times probably feared for their safety due to the manner in which the vehicles were driven.
Personal Circumstances – Delphin
46
Your personal circumstances were detailed in the Youth Justice reports, to which I have already referred, and in the report of the psychologist,
Dr Cunningham, following an assessment on 23 January 2013.
47 In addition to your extensive criminal history, you have a significant history of family trauma and generational criminality, not to mention a substantial history of substance abuse.
48 You have six siblings, one of whom, a younger sister, requires medical support because she was born with spina bifida.
49
Your father, who suffers from mental illness, reportedly on occasions has
self-harmed in your presence. There are reports of parental drug abuse, physical abuse and criminal activity and a transient and problematic history in relation to housing.
50 Moreover, the death of a younger sibling in April 2007 from Sudden Infant Death Syndrome was no doubt a very traumatic experience for you and your immediate family.
51 It appears that you first left your family home at approximately age 12 to live with an aunt during a period in which your mother was in custody. Subsequently, from age 13, you lived in Child Protection residential units and in foster care placements. During this time you were subject to a Custody to the Secretary Order, which expired on the eve of your 18th birthday. Importantly, you had not returned to your family home until being released on the Youth Parole Order on 7 May 2012.
52 It appears that your parents had separated in 2011 and, following your return to the family home, your father subjected you, your mother and other siblings to physical and emotional abuse. This prompted your mother to obtain a Family Violence Intervention Order restricting his access to the family home. Youth Justice reports that your father's behaviour was nonetheless a significant and distressing issue during the period of your release under the Youth Parole Order in May and June 2012 prior to this offending.
53 I was told that your mother, with whom you share a close relationship, currently resides at the family home with two of your siblings. The two youngest children are, however, in Child Protection Out of Home care placements. You evidently hope to return to your family home where, as part of a Leaving Care Plan in January 2013, I was told a bungalow had been constructed in the backyard in anticipation of your return.
54 I was told that over the past six years you have managed to maintain a relationship with a girlfriend who continues to support you. I expect that you are looking forward to the time when you can rejoin your mother and siblings and resume your relationship with your girlfriend.
55 Perhaps, not surprisingly in view of the history, I have summarised you have a limited education, having never attended secondary school. Moreover, your work experience has been limited to only short periods in employment, working mainly in the demolition industry with your father.
56 As I have already mentioned, you have a substantial history of substance abuse, namely cannabis, ecstasy, amphetamine, methylamphetamine inhalant, chroming abuse as well as alcohol abuse. Youth Justice reports that you struggled with cannabis and ice abuse during the past five community-based dispositions. You also told Dr Cunningham, who has diagnosed a Substance Use Disorder, that you felt invincible when using ice and that your abuse of this drug had involved a $1000 per day habit. Benzodiazepines are also part of your illicit drug repertoire. They were employed by you, in your words, to "come down" from the effects of methylamphetamine.
57 From the material before me, I accept that since returning to youth detention there has been a discernible improvement in your attitude, a change Youth Justice suspects may have been generated by your fear of being sentenced to adult custody. Whatever the reason may be for this improvement, I note that your current attitude indicates that you are motivated to try and address your substance abuse issues and to obtain stable employment in the future.
58 Moreover, Youth Justice reports that while detained in the Malmsbury Youth Justice Centre, you have voluntarily attended weekly psychological counselling sessions to address past trauma and current behavioural issues and you have engaged with a Health Care Coordinator to assist you in modifying your problematic behaviours in custody. I accept that this is a significant change in someone who previously refused to engage with psychological services.
59 You have also completed drug and alcohol and parenting programs and made commendable academic progress. For instance, I was told that you are currently working towards completing the literacy and numeracy components of VCAL, which will produce a Year 10 pass and will enable you to commence Year 11 VCAL. Evidently, you have also enrolled to commence studying for the Certificate 1 in Construction in the future.
60 Despite these recent positive changes, your history does however suggest that your longstanding prospects of adequately modifying your behaviour in the community should be approached with great caution.
61 It goes without saying that, as Dr Cunningham observed, you would probably benefit from a disposition that facilitated your rehabilitation and if a term of imprisonment was imposed, it would be preferable that this be undertaken in the Malmsbury Youth Justice Centre to allow access to a wide range of rehabilitative programs.
62 However, as the Court of Appeal has observed on numerous occasions, there are circumstances in which youth and rehabilitation as sentencing considerations must be subjugated to other sentencing considerations, such as denunciation and deterrence. This is particularly so where an offender has already had an opportunity to curb their offending behaviour and engages in offending that is, as here, objectively speaking, serious offending.[1]
Personal Circumstances -Taylor
[1]DPPvLawrence [2004] VSCA 154 [22]
63
Mr Taylor, your personal circumstances were revealed through oral submissions, the report of the Children's Court Clinic psychologist,
Dr Mihailides, following referral by the Dandenong Children's Court and assessment on 9 January 2012 and they were also summarised in the
pre-sentence report obtained at my request from Youth Justice and dated
13 March 2013. I have already touched on a number of the matters raised in the pre-sentence report.
64 You were about five years old when your parent's relationship deteriorated at a time when your mother was experiencing significant mental health problems. They subsequently separated. Your father has remarried and has two younger children. You do not have a good relationship with your stepmother. There is also an older half sister, who lives in New South Wales, and an older brother who no longer lives in the household you shared with your mother until you were remanded in custody.
65 Your parents continue to support you, particularly your mother. You anticipate returning to her household following your release from custody.
66 You are an intelligent young man. Evidently, testing of your IQ at an early age placed you in the upper-average to above-average range of intellectual functioning. This test, of course, is no predictor of how well a child will negotiate adolescence and the breakdown of family life.
67 There is also a reported history of treatment for Attention Deficit Hyperactivity Disorder for which you were medicated until about age 14 or 15. By your mother's account, the treating paediatrician also observed symptoms of Asperger's syndrome. There may also have been a diagnosis of Oppositional Deficit Disorder, although this was not mentioned in the psychologist's report.
68 Your mother has reported a significant history of behavioural issues from an early age which led to expulsion from school and a junior football team and expulsion from a job search network, the latter in late 2010 or early 2011, as well as leading to conflict within your home. In short, your mother’s account reveals that over many years, before and since you ceased taking medication prescribed by a paediatrician, she has struggled to control and accommodate sustained behavioural problems.
69 As Dr Mihailides noted, in the past you were avoidant of engagement with professional services and your behaviours were resistant to remediation by intervention.
70 Dr Mihailides identified two core features in the materials, which in his opinion were central to an analysis of your offending and problem behaviour. The first was a very serious and expensive methamphetamine habit which you told him was supported by crime. Evidently, by the time he prepared his report, in early last year, you had failed to participate in drug rehabilitation, notwithstanding a referral to the Youth Substance Abuse Service. The second feature identified by the psychologist involved evidence of deficits in your capacity for social and emotional reciprocity, with impaired eye to eye gaze and impaired modulation of non-verbal behaviour.
71
In short, the psychologist identified features consistent with an Autism-Spectrum condition, although he did not regard the degree of impairment as pronounced and, in the absence of evidence from an expert in this field,
Dr Mihailides was keen to emphasise the provisional nature of the Autism-Spectrum hypothesis.
72 Currently, there is no formal diagnosis of ADHD or, for that matter, ODD. According to your counsel, there was no funding to further investigate this issue. However, I was told that you only relied on the deficits identified in early 2011 to help explain the more recently observed limitations in your development of empathy and insight. Whether or not these limitations are explained by deficiencies in your capacity for social and emotional reciprocity or may be, as was noted in the Youth Justice pre-sentence report, attributable to immaturity, they remain relevant to my assessment of your prospects of rehabilitation.
73 There is, however, evidence of some progress because I was told that, while subject to the Youth Supervision Order, you complied with the referral to the Youth Support and Advocacy Service by attending appointments on a weekly to fortnightly basis. Moreover, in January 2012, you completed Year 10 and, in the months prior to commission of these offences, you commenced an apprenticeship as a baker, employment to which you are keen to return in the future.
74 Of course, when you reoffended you had already relapsed into significant drug abuse. Although, having spent a significant period in adult custody, I accept that you probably are, as now claimed, feeling much better since abstaining from drug abuse.
75 These are all matters which indicate that on balance, with access to further interventions and support your prospects of rehabilitation are reasonable.
Sentencing Principles
76 Through your counsel, you have acknowledged that these offences and the theft of the handbag from a woman in a shopping car park warrant the imposition of terms of immediate imprisonment. Counsel, nonetheless, urged sentences that would allow you each to serve any custodial sentence within the Youth Justice system.
77 Each of the reckless conduct endangering life offences represented a serious example of this behaviour, with the potential to cause great harm to other road users, including the passengers in the vehicles and to members of the police force. The police were performing a very important function in acting to protect the wider community from your very dangerous conduct.
78 Allowing for the injury suffered, the reckless conduct endanger serious injury is probably a less serious example of this kind of offence. This is not to deny the potential there was for great physical and psychological harm to the occupants of the police vehicle at the time.
79 While conceding that the community has a strong interest in rehabilitation of young offenders, the prosecution submitted (in my view correctly) that due to the circumstances of this case, in addition to denouncing particularly the reckless conduct offending, general and specific deterrence are emphasised as sentencing considerations. Protection of the community is also an important sentencing consideration, particularly in view of Mr Delphin’s history.
80 I was not directed to any comparative sentences. However, consideration of some of the recent decisions involving reckless conduct offending indicates that, as occurred in R v Bradley[2] and in Khudrujv The Queen[3] this offending often involves the use of a firearm. The point that needs to be understood at this juncture is that in these cases the Court of Appeal has, in the past, upheld significant individual sentences where the reckless conduct had the potential to cause great harm to either the public or to police in the performance of their duties.
[2][2010] VSCA 70
[3][2012] VSCA 2
81 The circumstances in which the handbag was stolen from a woman walking through a shopping centre car park, also represents a more significant example of this kind of theft and calls for a sentence which both condemns and deters this type of confrontational and no doubt frightening behaviour.
82 Moreover, despite the reckless conduct and theft of the handbag charges having arisen over a comparatively short period, each charge involved discrete conduct and would ordinarily justify some level of cumulation if individual sentences were imposed.
83 On the other hand, the prosecution conceded that the theft of the motor vehicles, petrol, an oil can and motor oil and the theft of food offences were at the lower end of the scale for these types of offending. The prevalence of the theft of petrol by driving off without paying, nevertheless emphasises deterrence as a sentencing consideration, as does the prevalence of theft of a motor vehicle for use in the commission of crime.
84 Convictions for theft of the motor vehicles also attract the operation of s.89(4) of the Sentencing Act 1991, which requires disqualification from obtaining one a licence for such time as the court thinks fit.
85 Even with moderation of the individual sentences to avoid disproportionate sentences, the question for me, particularly in your case, Mr Delphin, was whether the restricted range of punishment under the Youth Justice system properly reflected the overall gravity of the crimes? If the answer to this question was "yes", I was also obliged to determine your suitability for detention in a Youth Justice Centre facility in accordance with the requirements of s.32 of the Sentencing Act 1991.
86 As you are no doubt aware, the pre-sentence report, obtained at my request, from Youth Justice assessed you as unsuitable for detention in a Youth Justice Centre. This report acknowledges your apparent acceptance of responsibility for your offending, your display of victim awareness and your recognition of the link between your offending and substance abuse. However, other factors, namely the numerous orders to which you have been subjected, your history of entrenched offending which, as yet, you have not been able to modify and staff's belief that at times you are a negative influence on other young people, appears to have tipped the balance against recommending you for Youth Justice detention .
87 It was submitted that the sentencing range for you, Mr Delphin, fell between two and a half and four years' imprisonment with a commensurate non-parole period. As you will see from the sentence imposed in due course, I concluded that the restricted range of punishment available within the Youth Justice system did not properly reflect the overall gravity of your criminal activity. However, your youth, and the period already spent in detention, albeit for other offending, has persuaded me that in addition to modifying the overall sentence, the non-parole period should also be substantially reduced to allow a longer period for the Adult Parole Board to supervise your rehabilitation in the community.
88 Rather than impose individual sentences for multiple offences which involve the same facts and form part of a series of episodes of offending of the same or similar character, in your case, Mr Delphin, I propose to impose an aggregate sentence to reflect all of your conduct over a two day period.
89 So far as Mr Taylor was concerned, the prosecution submitted that Youth Justice Detention was within the sentencing range, namely a head sentence of between 18 months and two and a half years' imprisonment. The differential between the submissions, as to the sentencing range, largely reflects Mr Delphin’s greater culpability in the commission of the offences and his more extensive criminal history.
90
Mr Taylor, I expect that you have also been notified of the content of the
pre-sentence report in which it was indicated that, so far as Youth Justice is concerned, you are a suitable candidate for detention in a Youth Justice Centre.
91 In short, I have accepted the assessment of Youth Justice that the absence of previous custodial sentences, your past compliance with Youth Justice programs, ongoing family support and your ability to maintain employment, evidence reasonable prospects of rehabilitation.
92 You were also assessed as a young person, who, having already experienced bullying at the Metropolitan Remand Centre, remains vulnerable to threats from older prisoners. This information, and the deficits identified in your capacity for social and emotional reciprocity, which could be limiting the development of empathy and insight, satisfied me that for the purposes of s.32 of the Sentencing Act you are a young offender who is particularly impressionable, immature or likely to be subject to undesirable influences in an adult prison.
93 As is apparent from my remarks, in your case, Mr Taylor, your sentence will be served in a Youth Detention Centre.
Sentence - Delphin
94 On each of Charges 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14; you are convicted and sentenced to an aggregate sentence of 3 years and 4 months' imprisonment.
95 On each of the theft of motor vehicle offences, Charges 3 and 4, pursuant to s.89(4) of the Sentencing Act; you are disqualified from obtaining for two years and this order takes effect from today.
96 The total effective sentence is 3 years and 4 months' imprisonment with a non-parole period of 1 year and 8 months' imprisonment. This sentence in adult custody starts today and will be served concurrently with any uncompleted sentence of detention.
97 Pursuant to s.18(4) of the Sentencing Act I declare that the period of five days is to be reckoned as time already served under the sentence, and I direct that the fact of this declaration and its details be recorded in the records of the court.
98 Pursuant to s.6AAA of the Sentencing Act, I indicate that but for your plea of guilty a sentence of 5 years' imprisonment with a non-parole period of 3 years' imprisonment would have been imposed.
99 PRISONER: I don't want to go to Malmsbury.
100 HER HONOUR: Look, I am happy at this stage perhaps if the prison officer could remove Mr Delphin.
Sentence - Taylor
101 On Charge 1; you are convicted and sentenced to 16 months' detention.
102 On each of Charges 2, 8, 11, 12 and 13; you are convicted and sentenced to 20 months' detention.
103 On each of Charges 3 and 4; you are convicted and sentenced to 10 months' detention. Pursuant to s.89(4) of the Sentencing Act, you are disqualified from obtaining a licence for 18 months and this order takes effect from today.
104 On each of Charges 5 and 7; you are convicted and sentenced to 14 days' detention.
105 On each of Charges 6 and 9; you are convicted and sentenced to 7 days' detention.
106 On Charge 10; you are convicted and sentenced to 3 months' detention.
107 On Charge 14, the reckless conduct endanger serious injury offence; you are convicted and sentenced to 13 months' detention.
108 I direct that you serve your sentence in youth detention. Each of the sentences will be served concurrently, which means that the total effective sentence is 20 months' imprisonment.
109 Pursuant to s.35 of the Sentencing Act, I declare that the period of 264 days is to be reckoned as a period of detention already served under the sentence, and I direct that the fact of this declaration and its details be recorded in the records of the court.
110 Pursuant to s.6AAA of the Sentencing Act I indicate that but for your plea of guilty a sentence of 3 years' imprisonment with a non-parole period of 2 years' imprisonment would have been imposed.
111 Counsel, I understand there are no other matters that - - -
112 MS RUDDLE: Your Honour, I think perhaps - could Your Honour clarify what the 6AAA period was for Mr Taylor?
113 HER HONOUR: Three with the two, imprisonment that is.
114 MS RUDDLE: Yes. Thank you, Your Honour. No further matters.
115 HER HONOUR: Counsel?
116 MR McLENNAN: No, Your Honour.
117 MR PHILLIPS: No I have nothing further, Your Honour.
118 HER HONOUR: All right, I thank you for your assistance in this matter.
119 MR McLENNAN: Thank you, Your Honour.
120 MR PHILLIPS: As Your Honour pleases.
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