Director of Public Prosecutions v Duggan
[2022] VCC 1239
•20 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
CR 20-01812
CR-22-00164
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL DUGGAN |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 14 June 2022 | |
DATE OF SENTENCE: | 20 July 2022 | |
CASE MAY BE CITED AS: | DPP v Duggan | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1239 | |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Koori Court jurisdiction - Aggravated carjacking – Theft of a motor vehicle – Theft – Handling stolen goods – Destroying property – Dangerous or negligent driving whilst being pursued by police – Application of Bugmy principles – Application of Verdins principles – Delay – Parity – Mercy and leniency
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v The Queen [2013] 249 CLR 571; Muldrock v The Queen [2011] 244 CLR 120; R v Verdins [2007] VSCA 62.
Sentence:Total effective sentence of 914 days’ imprisonment in combination with a 2-year community corrections order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Hogan | Office of Public Prosecutions |
| For the Accused | Mr M. McLellan | Emma Turnbull Lawyers |
HIS HONOUR:
1Paul Duggan, you have pleaded guilty before me in the Koori Court at Geelong to two indictments. Indictment 1B contained three charges of theft of a motor vehicle, two charges of theft, one charge of handling stolen goods, one charge of destroying property and one charge of dangerous or negligent driving whilst being pursued by police.
2You also pleaded guilty to two relevant summary offences, driving whilst disqualified and failing to stop.
3The maximum penalties for these offences are, the theft offences, 10 years' imprisonment each, for handling stolen goods, 15 years' imprisonment, for destroying property, 10 years' imprisonment and for dangerous or negligent driving whilst being pursued by police, three years' imprisonment.
4You have also and I have indicated, pleaded guilty to the two relevant summary offences, driving whilst disqualified, which has a maximum of 240 penalty units or two years' imprisonment and failing to stop after a collision, five penalty units of
14 days' imprisonment.5On indictment 2A you pleaded guilty to an offence of aggravated carjacking which carries a maximum penalty of 25 years' imprisonment.
6You admitted relevant prior convictions, particularly in relation to motor vehicles, and particularly in relation to engaging in dangerous and reckless conduct in relation to motor vehicles.
Circumstances of Offending
7The circumstances of your offending are set out in the summary of prosecution opening for plea, which was Exhibit A which formed part of these reasons for sentence.
8In brief, the first mentioned indictment which I will simply refer to as 1B, and the relevant summary offences related to a spree of offending culminating in a very high level of dangerous driving, which occurred between 5 and 16 January 2019. Indictment 2A relates to an incident within that period, committed on 15 January.
9Your co-accused has been dealt with; he faced a different ledger of charges from you in some respects. He also had matters in mitigation not available to you. I will return to his circumstances when I discuss parity.
10Charge 1 on indictment 1B relates to your use, together with your co-accused, of a Ford Falcon wagon stolen between 5 and 7 January 2019. You and your
co-accused filled the vehicle with fuel and drove off without paying.11On 15 January you were a passenger in another stolen vehicle, a Ford Futura, and that is Charge 3 on the indictment 1A. Whilst a passenger in that vehicle, driven by your co-accused, you happened upon the victim of the carjacking, which is the offence the subject of indictment 2A.
12That offence occurred in Norlane. You observed Ms O'Meare delivering pizzas in a red Toyota. She was followed, you observed her for some time. At one point when she got out of her vehicle and was heading back to her vehicle, she saw you sitting in the vehicle you were in with the window wound down.
13She drove on and again next noticed you when the vehicle driven by your
co-accused accelerated towards her, blocking her travel and forcing her to brake. You got out of the passenger side of your vehicle, carrying a tool, such as a shifter. You walked towards the driver's seat where she was sitting, with the doors locked, and you started banging on the window and hit it multiple times with the tool.14The window broke and bits of glass fell onto her and she was covering her face with her hands. You reached in, unlocked the door, and grabbed her on the right shoulder and said, 'Get out', and pulled her out of the car. The vehicle remained in drive and rolled forward crashing into the Ford that you had been in. You then got inside the Echo, that is the vehicle she was in, and performed a U-turn.
15You then followed your co-accused in the vehicle he was in. The vehicle that you had taken pursuant to the carjacking was dumped in bushland in Steiglitz National Park. The police have not been able to locate the vehicle. The day following that your co-accused was arrested by police.
16On 21 January you were in another stolen vehicle, subject to Charge 5 on indictment 1A. When police attempted to intercept you, you were in company with another person. You were driving for part of the time, it seems the other person was driving at the commencement. But what followed once police pursued you was an outrageous and extremely dangerous attempt to evade police, or lose their pursuit, in a vehicle at various times reaching speeds up to 150 km per hour, overtaking vehicles in the emergency lane, crossing oncoming traffic against red light signals, weaving between traffic at dangerous speeds.
17You collided with two other vehicles and failed to stop. You travelled all over Geelong and surrounds, Barwon Heads Road and other areas around Geelong, including the Hamilton Highway at Inverleigh. It was an extremely lengthy pursuit.
18At one point you overtook a vehicle and a truck whilst driving on the dirt median strip at high speed. Vehicles were veering out of the way of your vehicle as you were crossing onto the wrong side of the road, possibly due to difficulty you had controlling your vehicle due to damage. Sparks were coming from your vehicle which started a small grass fire at Inverleigh. You drove through a fence destroying it. The car came to a stop in a paddock. You fled the vehicle eventually surrendering to police with your hands in the air.
19It is one of the worst examples of dangerous driving putting others at risk, all whilst being pursued by the police that I have seen. It is simply good fortune that no one was seriously injured or killed. Had that happened, no doubt, you would still be in custody most likely with a large stretch of prison ahead of you. A lot would be different in your life, had serious injury or worse eventuated from your driving.
20One thing that should be present in your mind of course, is the little one that came into your life in June, perhaps would not be here if you had remained in custody. The fact that you are not facing more serious charges due to the consequences of your driving is entirely fortuitous. Part of that fortune, is you have had the opportunity to show the person you can be.
21You were arrested and remanded in custody. You remained in custody until
22 July last year. You were in custody for around two and a half years, 914 days
pre-sentence detention is available to you.22You have now been on bail for a year. It does appear that your life has changed.
Objective Gravity
23The Objective gravity of your offending in particular to the driving and also the carjacking is high.
24In relation to the carjacking, it would have been a terrifying experience for your victim, she was working and alone at the time, she was a vulnerable target. You produced a weapon, you brandished it in close proximity to your victim, you broke the glass which would have terrorised her, glass fell on her and then you grabbed her and pulled her out of the car.
25Those are features which make it a serious example. I have already touched on the aspects of the driving that make it serious. The impact upon your victim of the carjacking was no doubt profound and devastating.
Personal Circumstances
26Turning to your personal circumstances. You are now 25. You had turned 22 a month or so prior to your offending spree.
27You are a proud Aboriginal man, a Wurundjeri man I was told through your father. Your relationship with your father has always been strained. I was told he was an alcoholic during your formative years, he was frequently violent in the home, and I was told he had spent time in custody. Your parents separated when you were around the age of five, and you were raised by your mother who is present in court along with your brother and other friends and family members, showing their support and care for you.
28You told psychologist Sandra Cokorilo that you witnessed and were subjected to near daily physical, emotional and verbal violence by your alcoholic father until your parents separated. You had limited contact with him since that time, all contact apparently ending in 2017. From the age of 13 you experienced housing instability and homelessness after leaving the family home. You would frequently return home, but your behavioural issues created a strained environment.
29You were identified as having an intellectual disability from a young age. Schooling was a problem for you. Behavioural problems arose from your frustration arising from learning difficulties and also protecting your brother and others from bullying. Your brother has a hearing disability.
30You had brief employment as a mechanic after leaving school, but I was told you have not worked in six years. You told Ms Cokorilo that you become frustrated that employers do not understand you.
31You have a six-year-old son from a relationship which ended in 2016. You have two children with your current partner, Rene, who attended the sentencing conversation in support of you and sat alongside you. At the time of the sentencing conversation you and Rene, herself a proud Aboriginal woman, had one child, and she was heavily pregnant with your youngest. I understand your child was born in June. Your mother, brother and Rene are a source of strong support.
32You told the Elders present at the sentencing conversation and myself, and earlier Ms Cokorilo when she assessed you, that you have changed your life, that you are no longer associating with people you had associated with in the past, and that you had stuck to your bail conditions. I accept that you are genuine in your desire to maintain an offence free life and provide the necessary support and stability for your young family.
Application of Bugmy and Verdins Principles
33Alongside Ms Cokorilo's report and her addendum, I was provided with an historical report from neuropsychologist Dr Matt Treeby, and a disability services client overview report from 2018. All of these reports are consistent with a history of trauma in the context of mild intellectual disability, which have an obvious relationship with other criminogenic factors; such as education difficulties, negative peer association, housing instability and homelessness, poor work history, and illicit substance abuse.
34I refer to Ms Cokorilo's report dated 26 May 2022 and there is also an addendum, both of which were exhibited and relied upon in your case. Referring to the
26 May 2022 report of Ms Cokorilo at paragraph 45. Ms Cokorilo opined that:Mr Duggan attributed his offending to negative peer influences and substance abuse. He estimated that since 2016 he has been incarcerated nine times for a total of five years. While he denied any significant trouble, he had noted difficulties understanding and following the rules in custody, due to his intellectual disability.
35That history sits alongside the history of childhood and trauma and disadvantage in the context of intellectual disability and the related effects which I have touched upon and referred to, set out in much detail through the materials.
36Ms Cokorilo noted that:
Mr Duggan explained he has made efforts to reform his lifetime, and as distanced himself from any social peers and has complied with all bail conditions including adhering to a curfew, providing negative urine screens and attending alcohol and drug counselling and judicial monitoring.
37She went on to say at 53:
Mr Duggan presented as a simple man of low intelligence with poor insight. He was eager to communicate a change in his outlook since he was released on bail and indicated that with support from NDIS workers, he is taking steps to establish a pro-social lifestyle with stable employment and housing.
38She went on to talk about the significant social anxiety you experience. I will not refer in detail to other parts of Ms Cokorilo's report however, I do note, that in relation to her opinion set out at paragraphs 64-72 which relates to the R v Verdins (“Verdins”)[1] mitigation which is accepted by the prosecution, I indicate that I accept her opinion as set out in those paragraphs from 64-72.
[1] R v Verdins [2007] VSCA 62
39And they provide the basis for the defence submissions in relation to the application of the Verdins mitigation and in a very thorough and proper presentation of the prosecution case, both in the opening and in the submissions on the sentence, that the prosecution have indicated matters of mitigation that they do concede and those concessions are well made and that the prosecution concedes that limbs 1-4 of the Verdins principles are enlivened.
40The prosecution concede some moderation of specific and general deterrence, however the prosecution make the submission that general deterrence is not eliminated given the very serious nature of the offending, and I accept that submission.
41The prosecution also concedes an application of limbs 5 and 6 of Verdins.
42The prosecution also accept that given your history and childhood circumstances as outlined in the reports of Ms Cokorilo and Dr Treeby, provide a basis for the application of the principles set out in Bugmy v The Queen (“Bugmy”).[2]
[2] Bugmy v The Queen (“Bugmy”) 249 CLR 571
43There is a relationship between the Verdins factors and Bugmy mitigation. They each provide a lens through which moral culpability is assessed.
44In respect of Bugmy, a more holistic application is available in the sense that a causal connection with offending is not paramount. However in your case,
Mr Duggan, your disadvantaged deprived and traumatic childhood, together with other matters personal to you such as your intellectual disability, have left you vulnerable to peer influence, substance use and poor consequential thinking, poor impulse control. There is a relationship between that disposition and the serious offending before me.45To make it clear, I accept that you have mitigation available to you in the sense that is set out in Verdins, limbs 1-6, and that the Bugmy principle applies in your case. Your experiences of childhood trauma and deprivation have shaped you and your responses in life. The presence of your intellectual disabilities exacerbated their impact. They have been drivers of other criminogenic factors as I have noted.
46It does become a circular affair, or perhaps a snowball effect in your formative years as it does for many people in your circumstances. And as I have remarked before, it is not possible to separate all of these factors and attribute them weight individually, because the effect of the whole is greater than the sum of its parts. It is the relationship between these factors that must be assessed in assessing the mitigatory effect.
47I also take into account, in a general sense, the fact that your experience of childhood trauma sits in the context of yours, and your father's Aboriginality. It is difficult in the absence of a greater understanding of your father's experiences and those before him, to assess the weight of inter-generational trauma, due to the experiences of Aboriginal families from the early days of colonisation to the present, as a factor in your case. It is a relevant matter for me to consider in the intuitive synthesis of factors, including in particular Bugmy mitigation, and I do so.
Participation in Koori Court Sentencing Conversation
48Turning to your participation in the Koori Court sentencing conversation. I take into account your engagement and participation in the sentencing conversation. You chose to come to Koori Court and be subjected to the confrontational and challenging conversation with your Elders Aunty Lynn McInnes and
Aunty Fay Muir.
49You responded well. You expressed remorse in your own way and in particular a willingness to change. You were clear that you had in fact changed your life and you were adamant that you were not associating with negative former associates. I accept that you have made great strides, and for a young man in your circumstances with your history, you should be given credit for what you have achieved whilst on bail.
50As I have mentioned, your partner Rene participated in the conversation. A friend and supporter of yours also spoke well on your behalf. He is sadly no longer with us and I understand his passing in violent circumstances must have been extremely traumatic for you and your partner. It is a stark and distressing reminder of how fragile life is. It is a reminder of how precious what you have is, and how you must stay the course.
51Your Elders challenged you in particular about being a role model and positive influence on your children, and a strong partner to Rene and these should be motivating factors for you to continue on the positive path that you are on.
Plea of Guilty
52Your plea of guilty is not at the earliest opportunity but is nevertheless a significant matter and of significant utilitarian value, particularly given that it was made in the midst of the pandemic and the trial lists in this state are in a state of crisis, it has been observed, hence the very significant utilitarian value of your plea. Your plea is also indicative of your acceptance of culpability and wrongdoing and is a positive sign for your prospects of rehabilitation.
Delay
53It is now three and a half years since the commission of the offences before me. In that time you have spent two and a half years on remand for these matters. Around 18 months of that time was spent during the pandemic and with the restrictions that applied to custody at that time. They were significant restrictions. Those 18 months were considerably more burdensome than the 12 months prior due to restrictions, and the anxiety created by the pandemic and its effects particularly at that time.
54You have been on bail for the past 12 months, and as the materials before me make clear, and in particular your participation in the conversation and the strong support you had from family, give me some confidence that you are trying your absolute best and are in a very different place than if I were sentencing you whilst you were on remand. I am cautious about your prospects, but there is reason for some optimism, given the supports available to you through the NDIS and on a justice plan.
Parity
55Turning to parity. I must have regard to parity. Your co-accused received a sentence of three years for the offence of carjacking. He had a major piece of mitigation available to him that is not available to you. That mitigation also provided a 'special reason' not to attach a mandatory minimum term to the sentence for that charge.
56The prosecution concede in your case, as is abundantly clear from the materials, that you have an intellectual disability and that the principles in Muldrock v The Queen have application.[3] This also provides a special reason in your case, as does the application of Verdins limbs 1-4.
[3] Muldrock v The Queen 244 CLR 120
57A significant difference between your circumstances and those of your co-offender is age. He was 27 at the time of the offending you were 22. He did not have available to him the significant Bugmy and Verdins mitigation that you do. And he does not have an intellectual disability. He did not have available to him the mitigation that is available due your participation in the Koori Court sentencing conversation.
58Significantly, the delay in your case has allowed me the opportunity of assessing your conduct on bail over a lengthy period after a very long period on remand. You are a father again for the third time with a one-month-old and a supportive and loving partner. These and other findings justify the disparity between the sentence imposed upon your co-accused for the carjacking offence and the sentence I will impose upon you for that offence.
59Your co-accused was charged with the offence of armed robbery. You were not so charged. As for other common charges regarding thefts, I have taken into account parity and the disparity I have referred to.
Application of Mercy and Leniency
60I have received a justice plan and a disability services plan together with a CCO assessment. You are assessed as suitable for a CCO with a justice plan attached. I have concluded that your case is an appropriate occasion for some mercy and leniency in sentencing for these reasons.
61You have a lengthy and troubling criminal history for one so young, it is a history that is consistent with a traumatic and disadvantaged childhood in the context of your intellectual disability and subsequent negative peer influences, lack of supports, education and structure from around the age of 13. Your gravitation toward substance use and negative older peer influence is not uncommon in this setting.
62You have spent a long time on remand, for the most part during the pandemic, but once given the opportunity of bail you have made real progress in remaining offence free, addressing drug use and negative peer association, and accessing supports. Your partner, young family, support from your mother and your protective attitude towards your younger brother are having a positive influence upon you. You have motivation to continue the change you have set upon. The CCO assessment, justice plan and disability services plan give me confidence that you will be well supported in your rehabilitation.
63My assessment of your commitment to change was assisted by your participation in the sentencing conversation with Aunty Fay and Aunty Lynn and those who participated.
64Given all of these matters I have considered that you are at a turning point. This is an opportunity to break the cycle of custody in your case. What is sometimes referred to as a watershed moment, returning you to custody would disrupt significantly the good work you have done. In arriving at this view I have taken into account the gravity of your offending, particularly the driving and the carjacking offence and the need for general deterrence, just punishment and denunciation of your crimes. I have also considered the protection of the community.
65I have considered the application of the totality principle. Whilst the charges that I am dealing with you for fall across two indictments, it is a one continued period of offending. What I have referred to as the spree of offending. In particular on indictment 1A, I have had regard to the principal of totality but also, as between the indictments.
Sentence
66I sentence you as follows Mr Duggan, and you can remain seated where you are.
67On Indictment 1A, given the connected nature of offences on the charges on this indictment, the period over which they were committed and the two related summary offences, I sentence you to an aggregate sentence. And that aggregate sentence is as follows.
68On Charges 1-8 and Summary Charges 17-24, you are sentenced to 15 months' imprisonment and a two-year CCO with the following conditions.
6975 hours community work, up to 50 hours of treatment can be credited towards that. The condition that you adhere to the justice plan. That you engage in drug and alcohol assessment and treatment. That you engage in mental health assessment and treatment. You be subject to supervision. You be subject to judicial monitoring, with the first being three months from today.
70On indictment 2A. You are sentenced to 914 days' imprisonment for the offence of carjacking.
71The sentences on each indictment are to be served concurrently.
72I declare that there is pre-sentence detention pursuant to s 18 of 914 days.[4]
[4] Sentencing Act 1991
73Your licence is cancelled and disqualified on Charge 8 for the mandatory minimum 12 months period. I also make cancellation and disqualification orders on
Charges 1, 3 and 4 on indictment 1B in the same terms, that is, 12 months.74So, all up, your licence is cancelled and disqualified for 12 months and I suggest you use that time to put things in place, so that you can actually be licenced at the expiry of that period or go for your licence.
75Pursuant to 6AAA, were it not for your pleas of guilty I would have sentenced you overall to a total effective sentence of four and a half years' gaol, with a non-parole period of three.[5]
[5] Ibid.
76Now are there any other matters, Ms Hogan? Any other orders I need to make?
77MS HOGAN: Yes, Your Honour may recall that at the sentencing conversation in respect of the licence cancellation, I indicated that by way of oral submission, that the minimum period should actually be two years.
78HIS HONOUR: All right.
79MS HOGAN: Other than 12 - it does say in the opening, 12 months.
80HIS HONOUR: Yes, I think I noted that down on my handwritten notes, now I probably couldn't read my writing probably. It is a mandatory minimum of
two years.81MS HOGAN: Two years. Yes.
82HIS HONOUR: All right, well look I am to substitute that order I made, where
12 months will be 24 months, but in respect it's the same. That's a mandatory period, Mr Duggan.83MS HOGAN: That's correct, Your Honour.
84HIS HONOUR: And what that means is you need to get licenced at some point in the future. That won't be able to be before two years, but you have got two years to work on and prepare yourself for that.
85MS HOGAN: And may I just check one more thing Your Honour with my instructor.
86HIS HONOUR: Yes.
87MS HOGAN: In relation to a disposal order, it was in the opening, I actually cannot remember now what it was for.
88HIS HONOUR: I'll also look at the opening.
89MS HOGAN: I'll just check that.
90HIS HONOUR: I am always forgetting disposal orders. I have got a draft disposal order here in my papers, so it might not be in the opening, but there's a disposal order here and it relates to of course, the stolen goods, in relation to the handling of stolen goods. There's also a wrench, a tyre lever, clearly connected with the offences, so I make that disposal order.
91MS HOGAN: Thank you, Your Honour.
92HIS HONOUR: I've got a document dated 8 June, draft disposal order, I'll make that disposal order.
93MS HOGAN: Court pleases.
94HIS HONOUR: All right. Now, Mr Duggan, what that means effectively is that you commence a Community Corrections Order today of two years duration. Now do you consent to that order?
95OFFENDER: Yes I do, Your Honour.
96HIS HONOUR: All right. Now that will involve the order being prepared and forwarded to your solicitor and to you for your signature, but I'll take your verbal consent there as formalising the order. You will have to present yourself to Corrections to commence the order, contact Corrections and it will be explained to you in more detail then. There'll be copies made available. Your workers they'll be able to explain to you what the requirements are. I have to have a date for the first judicial monitoring session. What that means is you'll be back before me, so I can see how you're going and get an update on you and make sure that everything's still on track.
97If you breach the order, if you breach this Corrections order, so the next two years you're under the court's supervision. If you breach the order by reoffending or by not attending the programs that you're directed to attend or by not doing the community work, and you're in breach or contravention of the order, it will come back before me and I'll have to consider re-sentencing you. Of course, that would be a very different exercise from what I've just undertaken today. So, it's a very important court order, and I'm sure this'll be explained to you in more details. Barnaby, do we have a date for the judicial monitoring?
98ASSOCIATE: Yes, Your Honour, 17th or 18 October is suitable, as is 25 October.
99HIS HONOUR: Let's say 17 October at 9.30 am for judicial monitoring. All right now, are there any other matters?
100MS HOGAN: No, Your Honour.
101MR McCLELLAN: If I can just ask Your Honour, will that be by Webex or should Mr Duggan attend in person for judicial monitoring on the return date.
102HIS HONOUR: Look, I think we'll say Webex given that I'll be in Melbourne. I think I won't require him to come to Melbourne for it.
103MR McCLELLAN: Thank you, Your Honour, nothing further from me. As
Your Honour pleases.104HIS HONOUR: Thank you Mr McClellan. All right, thank you everyone for your attendance we'll now adjourn the court.
105MS HOGAN: The court pleases.
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