Director of Public Prosecutions v Dorset-Turner
[2015] VCC 1273
•6 July 2015
IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted Suitable for Publication
AT MELBOURNE CRIMINAL JURISDICTION
CR 15-00396
DIRECTOR OF PUBLIC PROSECUTIONS
v
NATHAN DORSET-TURNER
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| JUDGE: | HIS HONOUR JUDGE PILGRIM |
| WHERE HELD: | Melbourne |
| DATEOF HEARING: | |
| DATEOF SENTENCE: | 6 July 2015 |
| CASE MAY BE CITEDAS: | DPP v Dorset-Turner |
| MEDIUMNEUTRAL CITATION: | [2015] VCC 1273 |
Subject: Catchwords: Legislation Cited: Cases Cited: Sentence:
REASONS FOR SENTENCE
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APPEARANCES: Counsel Solicitors
For the Director of Public Prosecutions
Mr B. Nankin
For the Offender Mr W. Barker
VICTORIAN GOVERNMENT REPORTING SERVICE
7/436 Lonsdale Street, Melbourne Vic 3000 - Telephone 9603 9134
1HIS HONOUR: Mr Nankin, are there any other matters that you wish to raise?
2MR NANKIN: No, Your Honour.
3HIS HONOUR: Mr Barker?
4MR BARKER: No, Your Honour.
5HIS HONOUR: Thank you. You can hear us okay, can you, Mr Dorset-Turner?
6OFFENDER: I can.
7HIS HONOUR: Thank you. If the sound drops out or anything, all of a sudden we go quiet, would you put your hand up so we know you have lost the verbal contact.
8OFFENDER: Okay, yep.
9HIS HONOUR: Thank you. Mr Dorset-Turner, you have pleaded guilty to one count of conduct endangering life, one count of negligently causing serious injury, one count of fail to render assistance after an accident and one count of theft, one count of dangerous driving whilst be pursued by police.
10You have further consented, pursuant to s.145 of the Criminal Procedure Act, to have three summary offences dealt with by this court, they being two counts of driving whilst disqualified and one count of being in possession of controlled weapons without lawful excuse.
11You have heard the learned prosecutor tell this court that the maximum penalties for each of those offences are as follows: conduct endangering life attracts a maximum of ten years; negligently causing serious injury, the same, ten years; failing to render assistance to persons after an accident, ten years; theft, in this case theft of a motor car, ten years' imprisonment, and the fifth count, dangerous driving when pursued by police officers, three years is the
maximum.
12The three summary offences, being two counts of driving whilst disqualified and one count of possessing a controlled weapon, the maximum penalty applicable for driving whilst disqualified is two years' imprisonment and the maximum sentence for possessing a controlled weapon is one year.
13Mr Dorset-Turner, these offences are indeed serious. Those maximum terms of imprisonment indicate the degree of seriousness that they are.
14For having pleaded guilty, I will impose a lesser sentence than I otherwise would have imposed. In other words, you receive a discounted sentence for having pleaded guilty.
15Just before I proceed onwards, so that it does not get out of context, there were two separate indictments filed, as no doubt you recall: one in relation to, I'll call it the Peterson matter where there was three or four fellows in the car, and the second indictment relates to the theft of the motor car from down in the Seaford area. I am dealing with the first indictment now.
16On Sunday, 23 March 2014, between 2.30 and 3.30 pm, it was that Brandon Furlan, Sean Peterson, were leaving a friend's house in Hastings. As Peterson was unlicensed at the time, Furlan was driving Peterson's red SS Holden station wagon. On a street corner in Hastings, you, Mr Dorset-Turner, waved the pair down. You asked for a lift to Mornington and offered to pay $50 in petrol money. Peterson agreed and you then got into the rear passenger seat of his vehicle.
17Mr Furlan drove to a milk bar in the Westpark Estate where he collected a friend, Caleb Pavlovic, before then driving on to a 7-Eleven store on the corner the Frankston-Flinders Road and Graydens Road, Hastings. You filled the car with $50.26 worth of petrol and went into the store with Mr Pavlovic. You spoke to the 7-Eleven attendant and stated that you did not have any money, but that
would you come back the following day. You filled out a Fuel Non-payment form and provided your proof of age card to the attendant, which was kept with the sales receipt and non-payment form and would be returned upon payment.
18Upon walking out of the 7-Eleven, you then suggested, as you had paid for the petrol, you should be allowed to drive the vehicle. Peterson agreed. You then got into the driver's seat and took off at high speed heading towards Mornington. As the car travelled along Graydens Road, where the speed limit is 80 kilometres per hour, you drove past Senior Constable Leigh Marriott, who checked your speed using a Stalker Moving Mode radar. You were travelling at 170 kilometres per hour. That is 90 kilometres per hour over the limit.
19As Senior Constable Marriott performed a U-turn and attempted to intercept your vehicle, you moved onto the wrong side of the road and drove towards oncoming traffic, still at high speed, causing at least one vehicle to pull off the road to avoid a collision. The speed and manner of your driving endangered the lives of Furlan, Peterson and Pavlovic and those of other road users. That relates to count 1.
20Mr Dorset-Turner, you then drove at high speed for a further two kilometres before turning right into Derril Road. You lost control of the vehicle and cut across Bentons Road, narrowly missing a car driven by Christopher Wraight, who had his wife and two children as passengers in his vehicle. Your vehicle ploughed through the timber fence of a residential property and flipped over onto its roof before coming to a stop. Mr Furlan and Pavlovic were uninjured in the collision. However, Peterson required immediate medical treatment. He sustained a broken L3 vertebra and was hospitalised for several weeks. He required a brace to assist him with walking when released from hospital and had ongoing treatment and rehabilitation over the subsequent months. That relates to count 2, those circumstances, negligently causing serious injury.
21After this accident, you got out of the vehicle and fled, failing to render
assistance to Peterson who remained in the vehicle. That is the circumstances relating to fail to render assistance after an accident.
22On this day, 23 March, you were disqualified from driving, your licence having been cancelled, and it was disqualified for a period of three years from 14 September 2012.
23The summary offences are similar in the sense that the section of the fence damaged by the vehicle was valued at $400; the car valued at $40,000. The car was written off.
24The second indictment, or presentment, as it used to be called, relating to the stolen motor ute, the circumstances are these. On 8 April 2014, Adam Quirk owned a white Holden, registered number ZZZX 129, and he left it parked in the front of his house in Nepean Highway in Seaford. That vehicle was valued at approximately $7,000, and was seen by Mr Quirk at approximately 6.30 am in the morning when he had left for work. When he returned home from work at approximately 2.30 pm, the vehicle was gone, so Quirk then reported the theft to Constable Sean Rampel at the Chelsea police station. That is the theft of the motor vehicle.
25On 17 April 2014 at approximately 5 pm Constable Rampel was off duty when he observed Quirk's stolen vehicle outside a house at 51 Guleph Street, Somerville. Constable Rampel alerted the Hastings police, who organised a surveillance of the vehicle.
26At approximately quarter to 7, you left the address in Guleph Street, got into the stolen vehicle and then drove towards Grant Road. You turned left into Grant Road and police attempted to intercept you and your vehicle. You initially slowed, but then accelerated with speed towards Eramosa Road East, where you reached a speed of approximately 100 kilometres per hour. This was in a 60 zone.
27You then continued to evade police as you drove through a strip shopping centre. You approached a roundabout where you drove onto the wrong side of the road, proceeding through the intersection and overtaking other vehicles. You then returned to the correct side of the road and accelerated further away from police and continued to Woodside Close. At this point, you attempted a hard right-hand turn and lost control of your vehicle. They are the circumstances relating to dangerous driving while being pursued by police officers.
28Mr Dorset-Turner, you came to a stop in the middle of the intersection and attempted to flee from this vehicle on foot. You were chased by members of the police force and tackled to the ground once they caught you and placed under arrest. At the time of the arrest, police located a leather pouch containing three small knives which had fallen out of your pocket. A further knife was located in the backpack in the stolen vehicle. Those knives relate to the possession of the controlled weapons.
29On 17 April, which is this day, you were disqualified from driving, as I said earlier, having lost your licence for three years on 14 September 2012. That is again one of the driving whilst disqualified matters.
30You were conveyed by the police officers to the Frankston police station where you participated in a taped record of interview. You provided no comment to each of the questions put to you which, of course, is your right.
31Mr Dorset-Turner, as you well know, all of these offences were committed whilst you were on parole. Your parole was breached there and then and you have been in custody serving a period of time that you then owed to the Parole Board. Your detention in custody for breach of this parole, as I understand it from counsel, both the prosecutor and defence counsel, expires on 22 August, that is next month.
32Mr Dorset-Turner, you have seen the forensic psychologist, Mrs L. Gianvanni.
This psychologist has prepared a report for the court. That report is dated 22 May 2015 and, without patronising that lady, I found it very useful. Mrs Gianvanni reports as to your background that you were born and raised in Melbourne initially. Your early relationship with your father was difficult, but fortunately, at the time you were approximately ten years of age, those difficulties submerged and you became very close to your father. Your father was a pilot and you had three very enjoyable years doing father-son things, but then, sadly and unfortunately, your father was killed in an aeroplane accident. You told Mrs Gianvanni, and I quote, and it's what you said to Mrs Gianvanni, "It messed me up a lot. It was very hard for me. We were very close towards the end. Dad and I spoke about anything. He was always there to look after us." Obviously, it was a devastation to you losing your dad.
33Mr Dorset-Turner, you are now aged 32, having been born on 28 December 1982. You have one younger brother and one younger sister. Mrs Gianvanni reports that you pushed the boundaries as far as possible whilst a youngster. To quote you, you said you were "very, very naughty". Then post the death of your father, again to quote you, Mrs Gianvanni says you said you were "terrible".
34Your brother is estranged from you, apparently because of your behaviour towards him as youngsters. You, however, despite your misbehaviour toward him, remain protective of him. You have a good relationship with your sister.
35I again quote Mrs Gianvanni. She says this. Regarding your relationship with your mother, you indicated that you - it was your words, "really, really bad" whilst growing up, "And things got worse", so you told Gianvanni, when your mother repartnered with a family friend soon after the death of your father. You said to Gianvanni, "I never forgave her she got together with this guy so soon. I think they were together even before. It happened too soon." It is amazing, Mr Dorset-Turner, how often I have heard this, but, still, that is the fact and that is what happened.
36You reported that whilst you were on parole, you reconnected with your mother after not talking to her for at least 15 or 16 years. You disclosed to Gianvanni that you resided with your mother and her partner, who you now accept, whilst you were on parole and you enjoyed spending time with your mother. As you know, your mother attended court to support you and, further, gave evidence on your behalf. You most certainly have a home to return to on your release from custody, as you heard your mum say. You have the continued support of your mother and no doubt your sister.
37Ms Gianvanni reports as to your education and personal relationships, and again I quote directly from her report. Rather than summarise it, I thought it best to read it. You attended mainstream schooling and you reported that you engaged in ongoing rebellious behaviour, which included yelling at teachers, throwing stuff, fighting against other students, swearing, smoking cigarettes and so forth. Your words: "I was always in trouble at school."
38Mrs Gianvanni says that you disclosed that you could not count how many times you had been suspended and you reported to having been expelled twice. The first time was in Year 8 and the second time towards the end of Year 10. You advised this lady that you quit school after you were expelled in Year 10 and to date you have not attended any further educational or vocational courses.
39Regarding employment, you disclosed to Mrs Gianvanni that you have always worked, but you have never held a job for longer than a year because you get bored or due to your drug abuse. You indicated to Gianvanni, and I quote you again, "Have tried everything, mostly labouring work," and you denied ever being unemployed for longer than a year. You said to Gianvanni, "I have had every job under the sun." When unemployed, like all other young people, you were on the dole.
40Your counsel, Mr Barker, informs me that you enjoy working as an arborist - a tree lopper, you called yourself - that you intend to return to this employment on
your release from custody. As I understand it, you enjoy that work and you are looking forward to resuming in that industry when you leave your custodial status.
41By and large, you have to have had a good work record on all of the information that has been given to me. You have undertaken numerous courses whilst in custody. You have the continuing support of your family, all of which indicates a positive prospect for rehabilitation.
42I pause there for a moment. I understand that Margoneet is specially designed to assist people like you who want to do courses to assist yourself and be better employed when you get out of prison, and hence we have got this connection today so you do not lose your place at Margoneet.
43Your drug abuse, as reported by Mrs Gianvanni, indicates a chaotic lifestyle.
Again I quote directly from her report. She says this, that you indicated having commenced smoking choof - I assume that is marijuana - and drinking alcohol when you were 13 years of age, soon after your father died. At the age of 14, you reported to have been introduced to snorting speed and within a short time you began injecting speed and smoking marijuana on a weekend basis before it became a daily addiction. All of those things you volunteered to Gianvanni. You also volunteered that you were up to half a gram a day of marijuana.
44Eventually, you told this lady that you started to experiment with party drugs. I pause there for a moment. There is no such thing as party drugs, but I do know that that is what they are called - a poor use of words. Apparently you were experimenting with ecstasy and cocaine and you injected heroin on six or seven occasions until your son was born. You report to Gianvanni that you were employed, that whilst you were employed you would initially only consume illicit substances on weekends when you would binge, which allowed you to be abstinent during the week. However, eventually your habit would increase to a daily basis leading to you losing your position. You would then abuse drugs
on a daily basis - as much as you could get hold of, so you said - until you then found another job and the cycle would then repeat.
45Post the birth of your son, you reported to Gianvanni that the frequency and quantity of your drug intake decreased. However, you were somewhat inconsistent regarding this. In relation to alcohol, you indicated to have engaged in binge drinking when you were younger but denied any problematic consumption since your son was born five years ago.
46Unfortunately, you have relapsed or fallen into the methamphetamine trap again and committed these first set of offences, that is relating to Peterson's car, so that there is no doubt which one I was talking about, and, as you know, Peterson's car was written off and he suffered serious injury.
47Dr Phillip Robinson, from Peninsula Health, prepared a report. He said this: "Routine blood and urine tests were performed on Mr Peterson, along with x-rays of the chest and pelvis and CT scan of the brain, neck, chest, abdomen and pelvis. There was an ECG test conducted. An intravenous saline was commenced. Intravenous analgesia was given regularly and C2 results showed a crush fracture involving the L3 vertebral body. A decision was made that Mr Peterson be transferred to a trauma centre with a spinal orthopaedic unit for further investigation and treatment." I understand that was to the Alfred Hospital.
48The victim, Mr Peterson, has chosen not to file a victim impact statement. I pause there for a moment and say this. You well know that you have got a shocking track record in terms of prior convictions at 34 years of age and they go back over a 15-year period and you have acquired 34 prior convictions in that time. Many of them are for similar type offences for what you now sit there for. You have other offences as well of an indictable or serious nature.
49Mrs Gianvanni, among other things, reports as to your personal relationships, and I believe this is important, and I say this much about your personal
relationship, that you indicated to that psychologist that you had been romantically involved with your former partner, Amy, since you were 18 years old. In 2008 you advised that you moved in together and in 2010 your son was born. You disclosed to the psychologist that the relationship was really good, but you indicated you would "often piss off for days", to quote you, due to your drug abuse. This, and your constant involvement with the criminal justice system, eventually led to Amy ending the relationship. You reported to Mrs Gianvanni that you are currently "together but not together again" - I think I understand what that means - explaining that "neither of them has been able to move on and they both hope that one day you'll get back together". I do not want to go down that path too far and, apparently, if I understand it properly, Amy was a victim in terms of suffering injury in the previous matter for which you were sentenced to a term of imprisonment and parole and that probably further complicates the matter, but I will not go there.
50As I understand it, you have great affection for your young son and you regularly visit him, exercising access rights with this young fellow.
51As I mentioned earlier, you were on parole at the time of the commission of these offences. I mention that just to further understand where you are at at this time.
52The County Court at Melbourne, sitting on 14 September 2012, had sentenced you on two indictments. Strangely enough, you are on two indictments again here. We do not often see that, but you were on two separate indictments on that occasion. The first indictment was for offences of negligently causing injury, and on the second indictment you pleaded guilty to one count of theft and one count of recklessly engaging in conduct by driving a motor car at an excessive speed. All of those counts are somewhat similar again to what happened here and, again similarly to what happens here, on that occasion you pleaded guilty and consented to summary offences being dealt with under the Criminal Procedure Act, as you have done here, to tidy up the records so that
you had a clean record when you walked from the court on that occasion.
53The total effect of the sentence that was imposed by the County Court on 14 September, just to make sense of where we are at today, was that you received a sentence of three years and four months' imprisonment and the court fixed a non-parole period of 20 months. Your parole having been breached, you then have 20 months owing and your parole was breached, as I said earlier, and that expires by way of serving the sentence on 22 August, next month.
54Because of that sentence and the fact that you have been in custody - I will say for 40 months at that time - I must take into account the totality principles and you heard Mr Barker address me on the principles of totality. I don't expect you to fully understand that, but the fact that you have been in gaol for 40 months and are facing further gaol, I have got to balance it out. I think the best way for me to explain that to you is to say I mitigate what the penalty otherwise might have been. If you had not had that difficulty, had not been serving a prison sentence, I can assure you that I would have been imposing perhaps a much longer sentence than I propose to impose today, but I must take into account the fact that by 22 August you have spent 40 months in custody and anything further will add to the time you have spent in that state of loss of liberty.
55Just to explain, I hope, at least for the record, the principles of totality are very important, and Eames J in the Court of Appeal here in Victoria said this, and I believe it is pertinent to exactly what is happening here. In R. v. Piacento, 15 VR 506, Eames J said words to this effect: "I have concluded that where the Parole Board has already acted to revoke parole by the time the offender falls to be sentenced for the offences constituting the breach of parole, the sentencing judge is not precluded from applying the totality principle in framing the sentence." That is what we have been talking about and Eames J says that that is the correct procedure.
56McHugh J, in the High Court of Australia, whilst on totality, said these, or words
to this effect, that, "Totality requires an evaluation of the overall criminality involved in all of the offences with which the prisoner is charged. It extends to the total criminality involved, not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving sentences," so that's what I endeavoured to explain to you in simple language before I read that legal material out.
57Mr Dorset-Turner, in arriving at what I must do, I am required to consider the maximum sentences applicable to each offence, and further I indicate to you that this court denounces in the strongest terms your behaviour on this occasion, particularly the drug-fuelled escapade in Peterson's vehicle with his friends on board. It was outrageous. It was so close, I would suggest, to numerous death occurring, but good fortune was there and, apart from Peterson, no other person was injured.
58Further, the principles of specific deterrence and general deterrence are very much to the fore. Unhappily, it is almost weekly, if not daily, that we read of wild pursuits through the streets of Melbourne where this sort of offending is occurring. There was a motorcyclist killed only a couple of days ago where police had commenced the pursuit and it was over before it started because, unfortunately, the motorcyclist collided with an another vehicle at the time he commenced his decampment from the area, if I can call it that.
59I assure you that I have taken into account all that has been said on your behalf by your counsel, Mr Barker. I take into account the evidence given by your mother and also, as I said earlier, the excellent report prepared by Mrs Gianvanni.
60I further take into account your early plea, which saves the State a fortune in terms of costs and inconvenience, and I also take into account, like I have already mentioned, your prospects for rehabilitation, good work ethic, support of your family, and you are taking steps to rehabilitate yourself by attending
numerous courses whilst in custody.
61Perhaps for the prosecutor and defence counsel, I will watch your pens so you can keep up with what I am saying from now on.
62In relation to count 1, which is the Peterson matter, that is conduct endangering life, the prisoner is convicted and sentenced to 20 months' imprisonment. That is the base sentence.
63On count 2, the negligently causing serious injury, again he's convicted and sentenced to 20 months' imprisonment. There is a lot more yet to come. You have to wait to the end, Mr Dorset-Turner.
64On count 3, failure to render assistance after an accident, convicted and sentenced to 20 months' imprisonment.
65I am calling it count 4, but it's count 1 on the second indictment, which is the theft of the motor vehicle.
66MR NANKIN: Sorry, Your Honour, you made reference to two separate indictments. I understood there to be one indictment.
67HIS HONOUR: I am sorry, two separate events, I should say.
68MR NANKIN: Two separate incidents.
69HIS HONOUR: Yes, I'm getting confused because there was two indictments in the previous one. Totally different offences.
70Count 4, sorry, convicted and sentenced to ten months' imprisonment. That is for the theft of the motor vehicle.
71Count 5, dangerous driving when being pursued by police officers, convicted and sentenced to three months' imprisonment.
72On the three summary offences for which the prisoner consented to this court
dealing with the matter, on each of the counts of driving whilst disqualified, he is convicted and sentenced to two months' imprisonment. On the offence of being in possession of proscribed weapons, convicted and sentenced to one month's imprisonment.
73I go back to the beginning again. Count 1, being a base sentence, I say no more: convicted and sentenced to 20 months' imprisonment.
74Count 2, I order that 18 months of the 20 months be served concurrently with count 1.
75Count 3 totally to be served concurrently with count 1.
76Count 4, where ten months was imposed, I order nine months of that sentence be served concurrently with count 1.
77Count 5, I order that two months of that sentence be served concurrently with count 1.
78Each of the summary offences are to be served concurrently with count 1 and, further, there are a number of legislative provisions that indicate mandatory disqualification and suspension. On counts 1, 2, 3, 4, 5 and summary offences count 1 and count 3, any licence to drive is cancelled and disqualified from driving for a period of three years.
79Further, the offender is to be placed on a community corrections order so as to avoid parole. I think it is a tidy way of giving the prisoner a certainty as to his date of release that may not be the case, especially where there has been a breach of parole in the past, as there has been on more than one occasion, I think, for this gentleman. He is to be placed on a 12-month community corrections order. I do not propose to impose any form of penalty within that, taking into account that Mr Dorset-Turner is serving a term of imprisonment, but I do propose to make an order that he attend pursuant to 48D(3)(a) for treatment and assessment if required for drug problems; 48B(3)(e), that he attend for
assessment and treatment if required for mental health problems; 48D(3)(f), that he attend if necessary for programs to assist in adopting a program to avoid further offending, and pursuant to 48E, to be subject to the supervision of a Corrections officer.
80Can I ask you this just to assist my staff, Mr Dorset-Turner? On release from custody, do you believe you are going to go back and live with your mother?
81OFFENDER: Yes.
82HIS HONOUR: Whereabouts does mother live in terms of the suburb?
83OFFENDER: Tuerong. It's West Hastings.
84HIS HONOUR: That will be Frankston. Thank you, I am just assessing which Corrections office you go to.
85OFFENDER: Yeah, Frankston.
86HIS HONOUR: Thank you. Pursuant to s.78(1) of the Confiscation Act, I make an order that the knives seized be forfeited and placed in the custody of the Chief Commissioner of Police and to be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
87I believe the only other order sought or only order required is s.6AAA. Had it not been for the plea, I find this very difficult to look into a crystal ball, but I believe I would have imposed a sentence of at least five years with a minimum of four years for these offences.
88There were no other orders sought, were there, Mr Nankin?
89MR NANKIN: No, Your Honour.
90HIS HONOUR: Thank you. Just before the gentleman leaves that room, I will leave the court in case you want to have a quick word to him before I go.
91You have got a document you are going to have to sign, that is the community corrections order. What will happen - I assume there is a warder nearby can probably hear what I am saying, anyway.
92OFFENDER: Yep.
93HIS HONOUR: My staff will send an email or whatever it is through to you.
An email will come through for you to sign it. The staff down there will get you to sign it and then they will send it back for us.
94OFFENDER: Okay.
95HIS HONOUR: Just stay there for a moment so your barrister can come and have a word to you if necessary.
96OFFENDER: Yep.
97HIS HONOUR: I will just leave the Bench so you can at least have a quick word to him if necessary.
98 Stay there for a moment and I will come back. 99 ---
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