Director of Public Prosecutions v Eames
[2022] VCC 741
•23 May 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-21-00918
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TANNER EAMES |
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JUDGE: | Her Honour Judge Gwynn | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 September 2021, 13 December 2021 | |
DATE OF SENTENCE: | 23 May 2022 | |
CASE MAY BE CITED AS: | DPP v Eames | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 741 | |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Robbery; conduct endangering persons; intentionally exposing an emergency worker to risk by driving
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Rossi v The Queen [2021] VSCA 296; Azzopardi, Baltatzis, Gabriel v The Queen [2011] VSCA 372; DPP v Murray [2019] VCC 1044; Cardona v The Queen [2021] VSCA 9; DPP v Guruge [2019] VCC 2015
Sentence:12 months imprisonment & Community Correction Order
(30 months duration, 250 hours community work, mental health and drug treatment)
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Lenthall (for Plea) Ms D. Gang (for Sentence) | Office of Public Prosecutions |
| For the Offender | Mr W. Blake | Slink & Keating |
HER HONOUR:
1Tanner Eames, you have pleaded guilty on indictment to charges of robbery, conduct endangering persons and intentionally exposing an emergency worker to risk by driving. You have also pleaded guilty to a number of related summary offences which include two charges of unlicensed driving, one charge of fail to stop on police direction, one charge of possess dangerous article in public place and one charge of exceeding the prescribed concentration of a drug.
2In sentencing you for your crimes, I must have regard to the maximum penalties for the offences which you have committed as they do provide guidance. The maximum penalty for robbery is 15 years imprisonment. For reckless conduct endangering persons the maximum penalty is five years imprisonment. Intentionally expose emergency worker to risk by driving carries a maximum of
20 years imprisonment. Unlicensed driving carries a maximum of six months imprisonment, as does fail to stop a vehicle on police direction and possess a dangerous article. Driving a vehicle exceeding the prescribed concentration of a drug in your case carries a maximum penalty of 12 penalty units. Those maximums reflect the seriousness with which Parliament regards these offences.3In terms of the offending, the circumstances of your offending were set out in a document entitled 'Amended Summary of Prosecution Opening on Plea', dated
14 September 2021. It is a detailed document and represents an acceptance by you of all the elements of the offences to which you have pleaded guilty and the factual basis on which I am to sentence.The offending
4At the time of your offending, I am told you were 21 years of age, couch surfing and using drugs. The victim of the robbery was Mitchell Greenwell. You had known Mr Greenwell in excess of 11 years, for which nine of those Mr Greenwell referred to you as best friends. However, you had not seen much of each other in the 12 months leading up to this offence.
5At around 2.15 pm on 21 August 2020, you attended at Mr Greenwell's address in Tyrone Street, Langwarrin. Mr Greenwell's father answered the door and you asked for Mitch. Mr Greenwell Senior observed you to be agitated as you tried to open the locked security door. He told you that you could not come in due to the COVID restrictions. You kept asking for Mitch until Mr Greenwell Senior shut the front door and told his son that you wanted to see him. Mitchell Greenwell came to the front door and asked, 'What the fuck are you doing here?' You told him that you had come to see him and asked Mitchell Greenwell to step outside, which he did do. You came up to him and challenged that he had been seeing your ex-girlfriend. Mr Greenwell felt threatened and observed that you were angry. He believed that you would seriously hurt him.
6At this point, another friend of Mr Greenwell's, Corey Grant, arrived. You demanded Mr Greenwell 'Better give me something or I'm going to shoot you.' Fearing that he would be hurt, Mr Greenwell removed his watch and handed it to you, forming the basis for Charge 1, robbery. The value of that watch is the subject of a compensation order.
7You demanded more but Mr Greenwell told you that he did not have anything else. When you asked his shoe size he told you to 'Fuck off.' You then asked for cash. When Mr Greenwell told you that he did not have any money, you told him to get on your dirt bike and go to the ATM with him. He refused. You then suggested that Mr Greenwell and you go to the ATM in Mr Grant's vehicle. Mr Greenwell again refused but suggested that he could get Mr Grant to drive him to the ATM and you could follow on your dirt bike. You agreed but threatened that if he was not the ATM you would come back and burn his house and cars down.
8Mr Grant commenced driving Mr Mitchell away from him home and Mr Mitchell told him what had happened. You followed on your dirt bike, forming the basis for one of the unlicensed driving charges. Mr Grant managed to get away from you. That was the end of that matter.
9On 22 August 2020, Mr Greenwell contacted police, concerned about a silver coloured Holden sedan he has seen at his house on several occasions. Police converged in the area an identified the vehicle in North Road, Langwarrin and began to follow it. You were the driver. When police caught up with the vehicle, it turned against a red light into McClelland Drive and continued north at an excessive speed. The vehicle entered the Peninsula Link Freeway travelling north at speeds of up to 175 kilometres per hour. Due to the vehicle's speed, police disengaged from following. Police Air Wing also followed your vehicle.
10You left Peninsula Link and joined the Frankston-Dandenong Road where you drove north along southbound lanes and caused two civilian vehicles to take evasive action before returning to the correct side of the road. You turned against a red light from Boundary Road onto Centre Dandenong Road and crossed onto the wrong side of Centre Dandenong Road before turning into Boundary Road. From there, you travelled south along northbound lanes at around 120 kilometres per hour.
11Shortly thereafter, you were again travelling on the wrong side of Lower Dandenong Road. Three vehicles took evasive action in order to avoid a head-on collision. Your vehicle crossed back onto the correct side of the road. Shortly afterwards, you turned onto Springvale Road where you travelled at 140 kilometres per hour. You crossed onto the wrong side of Springvale Road, causing two more vehicles to take evasive action.
12Police officer Senior Constable Jonathan Sagoe-Crentsil and Detective Senior Constable Lincoln were taken from other duties to assist. They followed some 300-700 metres behind your vehicle on Boundary Road, Lower Dandenong Road and Springvale Road, following the vehicle as it turned onto the Morning Peninsula Freeway. You drove onto the Mornington Peninsula Freeway and continued to travel at speeds up to 175 kilometres per hour. Near the Patterson River bridge you performed a U-turn and started travelling north along southbound lanes. Pursuing police vehicles were forced to take evasive action to avoid a head-on collision.
13Officers Sagoe-Crentsil and Lincoln were unable to move their vehicle completely off the roadway due to the presence of concrete barriers. Your vehicle passed within two metres of the police vehicle as it drove towards them. Both officers were understandably fearful of being injured, particularly given the road was wet and you were travelling at excessive speed. Those facts form the basis for intentionally expose emergency worker to risk by driving.
14Police maintained observations from a distance whilst preparations were made to deploy stop sticks to try and end the pursuit. At the intersection of Greens and Hammond Roads, Dandenong, stop sticks were successfully deployed, resulting in two wheels being punctured. Nevertheless, you continued, despite the damage caused by the stop sticks, crossing onto the wrong side of Greens Road before entering onto Eastlink where you travelled north along the southbound lanes at speeds in excess of a hundred kilometres per hour. Five other road users, including a semitrailer were forced to take evasive action to avoid a head-on collision. The front and rear driver's side wheels came off the vehicle as it drove.
15Your vehicle exited Eastlink at Ferntree Gully Road where a female passenger exited the vehicle and was arrested. You continued west along eastbound lanes of Ferntree Gully Road, travelling at approximately 40 kilometres per hour due to the fact that the vehicle was on rims by this stage. A further vehicle took evasive action to avoid collision. You then performed a U-turn and began travelling east along Ferntree Gully Road before re-entering Eastlink on ramp. After entering the on ramp, your vehicle came to a stop and those facts form the basis for fail to stop on police direction.
16In summary, during the pursuit and forming the basis for Charge 2, conduct endangering persons, the Police Air Wing and police members observed your vehicle crossed onto the wrong side of the road eight times, including on major roadways. Thirteen civilian vehicles took evasive action to avoid colliding with your vehicle. You appeared to travel of speeds up to 175 kilometres and your vehicle turned against multiple red lights.
17Police were immediately behind when your vehicle stopped and you were arrested, together with a male passenger. At the time, you did not hold a driver's license, forming the basis for the second related summary offence of unlicensed driving. Upon arrest, you were found to be carrying a green handled knife, forming the basis for Summary Charge 13, possess dangerous article. At the time of your driving, the weather conditions were poor, to the point that pursuing police were nearly forced to withdraw for safety concerns. You were taken to the Dandenong Hospital, complaining of an injured jaw.
18You were not formally interviewed, as you indicated your intention to provide no comment to questioning. You did, however, subsequently provide a sample of blood which was later analysed and found to contain approximately .42 mg/L of methylamphetamine, which forms the basis for the related summary offence 18 of driving whilst exceeding the prescribed concentration of a drug.
Offence gravity
19I turn now to offence gravity. The robbery of Mitchell Greenwell appears spontaneous, juvenile and immature, occurring in circumstances of what appears to be misplaced and unwarranted jealousy. He was largely able to protect himself from you and, of course, knew who you were. Apart from the charge of unlicensed driving occurring on this day, the robbery is separate from your offending of
22 August 2020.20Whilst no Victim Impact Statements have been provided, this particular offence occurred at Mr Greenwell's own home where others also lived and it was an environment in which all residents should feel safe and not threatened. Whilst it remains serious offending, it is not at the higher end for an offence of its type. On any view of it, the driving offences of 22 August 2020 are of far greater concern.
21Of course, Charges 2 and 3 on the indictment and Summary Charges 8, 12 and 18 are all part of the one event. Care must be shown to avoid double punishment. The offence of reckless conduct endangering person is a continuing offence and, as just described, involved you travelling on the wrong side of major roadways against ongoing traffic on no less than eight occasions. Numerous vehicles were forced to take evasive action. Your speed was excessive, late at night, and in wet conditions where it was likely the visibility was reduced. This of course presents a high level of obvious risk to yourself, your passengers, and other road users.
22Whilst a relatively new offence in the criminal calendar, the charge of intentionally exposing an emergency worker to risk by driving carries a maximum penalty of
20 years for a reason. That does reflect, as I said earlier, the seriousness with which Parliament regards that particular offence and the need for sentences to reflect that fact.23Whilst no actual injury was caused, it is clearly by sheer good fortune rather than good management as well as quick thinking by those who did mange to evade your driving. In addition, officers had to be deployed from other tasks. Clearly, you were not entitled to drive, given you were unlicensed at the time, the subject of summary charge, and your poor driving was protracted. I am told it was at least an hour, apparently drug fuelled and obviously exceedingly dangerous. Again, no Victim Impact Statements have been provided.
Prior criminal history
24For one so young, you do have a somewhat concerning criminal history, albeit, of only five court appearances. On 3 October 2017 you had your first appearance in the Melbourne County Court in relation to charges or armed robbery, robbery, arson, aggravated burglary and various other dishonesty and bail offences. At that time, you were convicted and placed in a Youth Justice Centre for what was a total of some 15 months and orders were made against your license. One hundred and twenty-four days were reckoned as having already been served.
25You then appeared at the Frankston Magistrates' Court on 16 October 2017, again, in relation to a range of dishonesty, driving and bail offences. On that occasion, you received a total effective sentence of nine months detention in a Youth Training Centre and orders were again made against your driver's license.
26On 13 April 2018, you appeared at the Moorabbin Magistrates' Court for a charge of theft from motor vehicle and obtain property by deception. You were fined $600 with conviction and ordered to pay compensation.
27On 28 November 2018, you appeared at the Melbourne Magistrates' Court in relation to a charge of recklessly cause injury. You were again detained in a
Youth Training Centre, this time for a period of six months.28Your next court appearance was on 25 March 2020 at the Frankston Magistrates' Court in relation to a range of dishonesty, bail and drug offences. At that time, you were convicted and sentenced to 155 days imprisonment, that being in adult custody, of which 155 days were reckoned as having already been served. You were also placed on a Community Correction Order for a period of 18 months with treatment conditions. You were subject to this Community Correction Order at the time of your offending in August 2020 and that is an aggravating feature to the offending which is before me.
29Whilst not to be punished for your criminal history a second time, it is relevant to the assessment of the weight to give in sentencing to principles of specific deterrence, denunciation and protection of the community, all of which carry some weight in your sentencing exercise. That history is also relevant to an assessment as to your prospects for rehabilitation. I note that four of the five sentences previously imposed have involved your confinement. Looking at your history in isolation, it would appear, at first blush, that you have not responded to the sanction of confinement nor the intended benefit of a supervised order.
Personal circumstances
30I turn now to your personal circumstances. You were born and raised in Frankston to your parents Linda and Bruce Eames. You describe your childhood as positive and that you had a good and supportive family. You are the middle of three children born of your parents. You have an older brother, Harvey, and a younger sister. You attended Frankston Heights Primary School, followed by Karingal Secondary College. You struggled with schooling. You were ultimately asked to leave due to aggressive behaviour towards other students in Year 9. You had been a poor student and struggled to read and write.
31You apparently had multiple head injuries during your childhood and adolescence due to sports and motocross accidents. You left home at 15 years of age in the context of already existing drug use and experienced homelessness and unstable living conditions. On leaving school, you obtained a carpentry apprenticeship and completed one year of that apprenticeship before you were remanded into
Youth Detention. You continued in carpentry upon your release from
Youth Detention but your progress was disrupted due to criminal behaviour and drug use. You started your third year but did not manage to complete your carpentry apprenticeship.32When 16 years of age, you were made aware that your grandfather was Aboriginal. Since that time, you have showed an interest in your cultural heritage and engaged with Koori cultural worker when you were in Youth Detention. You have discovered that you have extended family in South Australia and are generally interested in looking further into that part of your family history.
33At 19 years of age, on being released from Youth Detention, you commenced working in a concreting company with your brother, Harvey. Harvey has remained supportive of you. However, you only managed to work with the concreting company for a couple of weeks before you were found to be in breach of youth parole and returned to a Youth Training Centre by November 2018. Upon your next release, you commenced working for a scaffolding company which you did for six months before collapsing into drug use and ceasing work. That was your last period of paid employment prior to your most recent remand.
34It is clear that your drug use has had significant and negative impact on your life and of those around you, as well as members of the community. You were apparently introduced to drug use through a negative peer group and were using marijuana by the time you were aged 13 years. At age 14 you smoked methamphetamine and commenced using other drugs, such as alcohol and ecstasy. You have since used GHB and heroin. You were using drugs at the time of the offending before me.
35A report authored by Carla Ferrari, consultant psychologist, dated 17 August 2017 was tendered. She stated that your history at that time highlighted a predisposition to poor coping and impaired resilience due to the possibility of undiagnosed neurological or neurocognitive issues. At that time, she did not see any evidence of personality or psychotic disorder. At that time of her report, you had no criminal history and it would appear her report was prepared for your appearance in the County Court in October 2017.
36Following her suggestion, a neuropsychological report authored by Dr Sami Yamin, clinical neuropsychologist, and dated 10 September 2017, appears to have been commissioned and has also been tendered. Drug use and homelessness played a role in your offending at that time, as it clearly did in the offending before me. Dr Yamin identified your full scale IQ to be at 67, that is, in the extremely low range. You have difficulty learning information, your self-monitoring and impulse control were severely reduced. He was of the opinion that you displayed moderate cognitive impairment that was inconsistent with premorbid estimate, suggesting that at some stage you have suffered some form of mild to moderate brain injury, although the severity of the cognitive deficits were above and beyond those that would result from relatively mild brain injury. In his opinion, you would actually need assistance with daily living skills.
37Whilst this report clearly pre-dates your offending, I accept that the cognitive deficits identified by Dr Yamin are unlikely to have improved. I accept that they are likely to have been operative at the time of your offending, such as to reduce your moral culpability and to reduce somewhat the weight to be given to both general and specific deterrence.
Chronology and plea of guilty
38Another significant factor in the sentencing exercise is the chronology of your plea of guilty. It does appear from the chronology that I have been provided with that, from the moment you were charged in August 2020, you hoped to resolve these matters.
39The chronology outlined in the prosecution opening indicates that on 11 November 2020 you were already in discussions with the prosecution. A committal case conference on 16 November 2020 was adjourned to further those discussions and on 2 December 2020 the charges were listed for a one-day condensed committal hearing. That committal hearing was actually held on
4 May 2020.40You were committed for trial and at an initial direction hearing in the County Court on 5 August 2021, the charges were again adjourned for discussions between your representatives and the Office of Public Prosecutions. A further directions hearing on 30 August 2021 was adjourned for the same reasons. The charges ultimately resolved on 8 September 2021 with a plea hearing before me on
14 September 2021.41There is as significant difference between the charges on which you are committed to this court and the charges to which you have now entered your guilty pleas such that, in my view, your plea of guilty in September affectively represents your first opportunity to plead guilty to what was determined to be appropriate charges. It is, therefore, a plea of guilty at an early stage. In addition, I accept that your plea of guilty has utilitarian value in the time and expense it saved the court from a contested proceedings and the need for what would have been many witnesses to have to give evidence and perhaps relive somewhat traumatic events.
42In the decision of Worboyes v The Queen [2021] VSCA 169 at paragraph 39 the Court of Appeal said:
'A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.'
43The importance of the utilitarian benefit from a plea of guilty at this time was recently reinforced in the decision of Rossi v The Queen [2021] VSCA 296 which repeated from Worboyes:
'Whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances and concomitantly as attracting and augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.'
44There is, therefore, important utility in the message sent to those considering their options as to the sentencing discounts which attach at this time. In addition, based on the material before me and your response to bail to which I will shortly turn, I accept that you are genuinely remorseful for your offending. All of those factors will be taken into account in your favour.
Prospects for rehabilitation
45In terms of your prospects for rehabilitation, the sentencing exercise requires me to take into account a range of factors which I have referenced, include general deterrence, specific deterrence, denunciation and, clearly, the need to protect the community. Another relevant factor is an assessment of your prospects of rehabilitation. That does include your youth. As referred to earlier, you were 21 years of age at the time of your offending in August of 2020.
46In the decision of Azzopardi, Baltatzis, Gabriel v The Queen [2011] VSCA 372 at paragraphs 34-36, then Redlich JA made clear the reasons to prioritise youth as a sentencing consideration. In short compass, these include that young offenders are immature and may not fully appreciate the nature, seriousness and consequences of criminal conduct, the fact that it is recognised by the courts the increased for potential for young offenders to be rehabilitated - which is clearly in the public interest - and that incarceration can impair rather than enhance a young offender's prospects of rehabilitation. I accept that these considerations have application in your particular case.
47Whilst there are occasions on which the sentencing principles as they relate to youth can take a back seat, given your reduced moral culpability, this is not one of those cases and your youth should be given both proper consideration and proper weight in the sentencing mix, especially given the foundation which now exists to see your prospects more positively than a mere assessment of your prior criminal history would afford.
48You were arrested on 22 August 2020 and bailed by me on 9 September 2021, having spent a period of some 384 days in adult custody, the longest period which you have been required to serve in that environment. It is a period which appears to have played some role as both a sanction and a deterrent. Much of your period of remand, if not all of it, was during the Corrections' response to the COVID-19 pandemic which would have seen you quarantined for the first 14 days. I accept, in a general sense, it also meant less access to physical visits from family and loved ones, less freedom of movement within the system, less access to courses and programs overall which does, in my view, make both the remand or sentenced prisoner experience during this time more onerous than it would otherwise be. I take this factor into account.
Response to bail
49In terms of your response to bail, in support of your application for bail in September 2021, I received a letter from Phoenix Specialised Youth and Disability Services dated 8 September 2021. They told me that you were able to access supported coordination via their services which did include a current and existing NDIS plan. This would be the first opportunity you had had to access such a plan. The goal was to assist you to find and maintain stable accommodation, increase your independence, find employment and stay out of prison. You were described in that letter as engaging with therapeutic supports. I had also received confirmation in written form from an organisation called Better Rehab which included an occupational therapy plan review report which provided recommendations for an NDIS plan.
50You were released on bail by me on 8 September 2021, initially with the support of the Court Integrated Services Program, before you then transitioned back onto the Community Correction Order that you had received at the Frankston Magistrates' Court on 25 March 2020.
51You were initially bailed to reside with your brother, Harley, and his partner. When some difficulty arose in that context, rather than give up and return to drug use, alternative accommodation was located for you and your partner. A letter, again, from Phoenix, dated 18 October 2021, tells me that you signed a lease with your girlfriend, Megan Mason, on four-bedroom house in Clyde North. This was with the assistance of your mother. The letter indicated that you were able to access NDIS supports twice a week to support your daily living skills and that family members would be checking on you regularly. You had also recently engaged with the Monash Health Mental Team Exercise Program.
52Support letters were also tendered at that time from your mother and an aunt, indicating that you were well supported by family in maintaining independent living.
53Upon your release, you attend an appointment with your general practitioner and obtained a prescription for methadone.
54A report from the Court Integrated Services Program dated 6 October 2021 told me that you had commenced alcohol and drug counselling with them on 13 September 2021 and had attended appointments regularly. You were described already as being well engaged, presenting as both open and forthcoming. You expressed your desire to remain abstinent from substance use. The requirement to comply with the CISP program was removed on 8 October 2021 as you had re-engaged with the Community Correction Order imposed by the Magistrates' Court in March 2020.
55The charges on the indictment and summary offences were therefore listed for further plea on 13 December 2021 to give you the opportunity to re-engage with the Office of Corrections before being in a position to properly assess a range of sentencing factors relevant to your case.
56A pre-sentence report was ordered from the Office of Corrections. A “Progress Report for Community Correction Order” relating to the order imposed on you by the Frankston Magistrates' Court in March 2020 was provided. That report indicated that you attended as required on 10 September 2021. In terms of the supervision component of the order, you attended as required and presented as polite and you were described as being well engaged. The Magistrates' Court Community Correction Order was apparently varied on 17 November 2021 to a 30-month order which included a judicial monitoring condition. I am told that order now expires on or about 16 May 2024.
57In terms of your treatment and rehabilitation for drug use, you frankly admitted that you had engaged in heroin use whilst incarcerated. Correctional Services arranged for you to be assessed by the Australia Community Support Organisation (ACSO) and you were engaging as required. In terms of treatment and rehabilitation relating to your mental health, you were awaiting a referral to a psychologist as part of your NDIS package. In the meantime, Correctional Services had referred you to the Forensic Mental Health and Community Health Program. You had attended all sessions as required and had engaged with an exercise physiologist. You had attended for urine screens as directed and these all indicated that there was no illicit drug use.
58The progress report describes you in the following terms:
'Mr Eames demonstrates ability to remain engaged as required and has availed himself of all that is required of him within a short timeframe. Mr Eames engagement since his release back into the community has been adequate and highlights on his capabilities to engage in a pro-social manner and with the appropriate supports available to assist him.'
59I had also received a letter dated 13 December 2021 authored by Christine Kemp, NDIS support coordinator. She writes that you have done well since your release from custody. You engaged with NDIS workers on a weekly basis and were attending drug testing. You have been linked in with WISE Disability Employment Services and had found some casual work with a construction company. You had also been referred to financial counselling services to help you manage your finances on a day-to-day basis. She described you as, 'A dream to work with.'
60Pursuant to s83A of the Sentencing Act, you were released on a deferral of sentence in order to allow for your capacity for and prospects of rehabilitation to be assessed. I ordered an additional progress report from the
Department of Justice and Community Safety relating to the Correction Order in the Magistrates' Court to which you are subject. I also ordered an assessment as to your suitability for a Community Correction Order.61The matter was adjourned to 23 February 2022 to allow for that deferral of sentence and the requested reports to be provided. Unfortunately, the matter was unable to proceed that day due to my core commitments and then difficulties finding a date when counsel was available. The matter was therefore further adjourned until today's date 23 May 2022. Nevertheless, the requested reports were provided.
62A progress report for Community Correction Order dated 7 February 2022 detailed your continued progress on the Correction Order to which you are subject in the Magistrates' Court. You have continued to attend for supervision as required, were described as engaging openly during discussions with your case manager and to notably demonstrating pro-social changes within your lifestyle. You have prioritised obtaining stable employment, were engaging well with your general practitioner pertaining to ongoing medical appointments and were working to overcome any concerns you had or barriers.
63At the time of that report, you had continued to engage in treatment and rehabilitation for drug use and abuse as required. You had continued to engage in mental health treatment as required whilst still awaiting appropriate referrals through the NDIS scheme. Urine screens continue to indicate a negative outcome for illicit substances. You were described as demonstrating positive compliance with the Community Correction Order of the Magistrates' Court, attending all appointments as required and seeing great positivity in your relationship with your current partner, the support of your NDIS worker and other family members. There were no concerns identified with your compliance.
Reports
64In terms of an assessment as to your suitability for a Community Correction Order, an assessment outcome report dated 14 February 2022 was provided. You were assessed as suitable for a Correction Order. Throughout that assessment you were described as being respectful towards the author. You had commenced by that stage working two days a week in landscaping.
65In addition, a Mental Health Advice and Response Service report was also provided. That assessment was undertaken in late December 2021. You did have a documented and self-reported history of trauma, polysubstance misuse, emotional dysregulation, impulsive reckless behaviours, depression, and cognitive deficits. You presented to the assessor as sober, participating in a mental and physical health regimen and reporting motivation not to reoffend and to actively work with Corrections on successfully completing a Correction Order. It was recommended to me that a mental health component be included in any Community Correction Order imposed in order to promote your wellbeing and reduce the risk of reoffending.
66In advance of today's hearing, I have received a further “Progress report for Community Correction Order” dated 19 May 2022. You have continued to attend for supervision as required and are described as continuing to demonstrate
pro-social changes within your lifestyle. Urine testing has continued to indicate a negative outcome for illicit substances. Again, there were no concerns identified pertaining to your compliance with respect to all conditions of that order.67I am told today that you are successfully on a medication regime which sees you taking an antidepressant, Depo-Provera, as well as buprenorphine. I
68have also, in advance of today's hearing, received a number of references. Your partner, Megan Mason, has provided a reference and speaks of you obtaining your initial goals of finding somewhere to live and finding some employment. You are house proud and have a rewarding relationship. Ms Mason speaks of the incredible positivity and change in your attitudes, behaviours and life choices. According to Ms Mason, you have built a healthy and happy life together and you have made positive goals for your future.
69Your parents, Linda and Bruce Eames, have also provided a reference. You presently visit them regularly for meals and contact them for advice and reassurance. They are pleased to see you use supports that have been made available. In their view, “the old Tanner is back, his values and respect that he grew up with are still there”. They are proud of the changes that you have made and it would appear they have reasons to be so.
70Your employer, Barry Parsons, of Parsons Plant & Construction met you when you were playing football some years ago. You came to work for Mr Parsons last year. He speaks of your positive attitude, leadership and strong work ethic and it impressed Mr Parsons particularly that you had told him of the charges you face, saying that, in his view, “this outlines the character of the man and the integrity that he operates in his profession”. You have ongoing employment with Mr Parsons some three days a week.
71Anita Hayson, forensic disability worker with Phoenix, has been working with you since September of last year. She takes you to appointments, including drug screens. She describes you as well mannered, polite and as willing to ask questions and seek advice. She also speaks of your remorse and you wishing to make the best of your life and the future. Remorse was a theme in the reference material overall.
72Mr Eames, you are to be commended for the efforts over the last eight months. With your history of drug use and abuse over a not insignificant period of time, combined with your identified cognitive deficits and the stresses that you would have faced over that period, your efforts can be described as nothing short of extraordinary, if not exceptional. At this point in time, given the reports before me and your response to therapeutic interventions, your family support, your supportive relationship with Ms Mason, your ability to access the NDIS scheme and employment, your prospects of rehabilitation seem to have been markedly improved since September 2021. In fact, your present prospects would have to be assessed as good, provided you can maintain your current course. I accept that you are highly motivated to do so.
73In that sense, there appears to be less need to protect the community from you than was previously the case. The period of deferral has meant a delay in outcome which, whilst affording me the ability to assess your future prospects, would have been an additional stressor for you. It is a factor I take into account.
Submissions
74In submissions dated 14 September 2021 and predating your release onto bail and compliance with the CISP program initially and the Department of Justice and Community Safety over a period of some eight months, the prosecution submissions are that a proper reflection of all sentencing principles could only be reflected in the imposition of a head sentence with a non-parole period.
75I have been referred to three cases today which include that of the DPP v Michael Murray, a decision of the County Court of 13 June 2019. In brief compass, that involved a Koori offender aged 28 years of age who had an acquired brain injury and was assessed as having good prospects for rehabilitation. Of course, Mr Murray was not able to rely on the principles of youth nor the Worboyes considerations.
76I have been referred to a decision of James Cardona v The Queen, a decision of the Court of Appeal [2021] VSCA 9. In terms of Mr Cardona, he was charged with reckless conduct, not the more serious driving offence. He was only 21 years of age, he had prior matters and subsequent matters and was unemployed at the time that he was dealt with.
77I have also been referred to a decision of the DPP v Guruge. Date of sentence was 9 December 2019 in the County Court [2019] VCC 2015. Mr Guruge was
37 years of age, had a significant prior history, was facing deportation, and had guarded prospects for rehabilitation. He too, of course, could not access the Worboyes type considerations.78Those decisions were of some assistance in the sentencing exercise. Their differences obviously lie and, of course, as the prosecutor rightly points out, each cases does fall on its own merits.
79In some ways, your efforts over the past eight months take you away from the norm of sentencing in relation to the driving sentences particularly. Your counsel contended in September and again today that a combination sentence, that is, a term of imprisonment in combination with a Community Correction Order would also properly reflect relevant sentencing considerations.
80I confess this is an extremely difficult sentencing exercise. As has been made clear, your driving on 22 August 2020 was dangerous, high risk and quite frankly, shocking and appalling. The message does need to be sent to you and to others as to the consequences that flow for those that choose to offend in this particular way. On the other hand, you pleaded guilty early and in difficult times in terms of the court's need to response to the COVID-19 pandemic. Your cognitive deficits reduce your moral culpability and the weight that I do give to general and specific deterrence as I have already outlined. Your youth is a significant factor in the circumstances of some eight months of exceptional and positive change.
81There is genuine merit in supporting a young offender to move away from a life of crime. This can only be in the community's interests overall. It simply cannot be in the community's interest to re-expose you to the prison system and risk your
re-contamination into a criminal way of life. That, in my view, could only be a retrograde step.Sentencing
82Returning now to the sentencing exercise and I will deal with license matters first. The charge of intentionally expose an emergency worker to risk by driving is a serious motor vehicle offence pursuant to s87P of the Sentencing Act. On conviction for that offence you must be disqualified for obtaining a license for a period of not less than 24 months pursuant to s89. I am satisfied overall that your driving on 22 August 2020 was under the influence of drugs.
83On Charge 3 therefore, intentionally expose an emergency worker to risk by driving, all licenses held are cancelled and disqualified for a period of 24 months. Now, that does represent the minimum disqualification period but I am well aware it comes at a time where you are employed and a loss of license will have impact. It is done to limit the impediment on your continued rehabilitation.
84For the same reasons, the charge of reckless conduct requires a 12 month disqualification in these circumstances. Accordingly, all licenses cancelled will be cancelled and disqualified for a period of 12 months on that particular charge.
85The summary charge of driving a vehicle whilst exceeding the prescribed concentration of a drug also carries a license disqualification. For that charge all licenses held are cancelled and disqualified for a period of six months.
86Otherwise, the basic purposes for which a court may impose a sentence, include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
87In sentencing you, I have regard to a range of matters such as the seriousness of the offending, you culpability for it, your personal circumstances and those of any victim. I must also balance the interests of the community in denouncing criminal conduct, which I do, and the interests of the community in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.
88I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act were relevant to your case. It is not lost on me that s5(4) of the Sentencing Act reminds me, in effect, that gaol is a situation of last resort. I have taken into account the current sentencing practices for the offences to which you have pleaded guilty, as well as the principles of totality, proportionality and parsimony.
89In terms of the summary charges, for Charges 7 and 8, which are the unlicensed driving, Charge 13 which is the possess a dangerous article in a public place and Charge 18 exceed the prescribed concentration of a drug, you are convicted and fined an aggregate of $3,000.
90In relation to the charges on the indictment, I will deal with the robbery first. You are convicted and sentenced to six months imprisonment of which 14 days are cumulative on the other sentences I am about to impose.
91Courts do have more discretion in terms of choosing a sentencing disposition which enables all the purposes of punishment to be served simultaneously in a coherent and balanced way, in preference to the option of imprisonment which is skewed naturally towards retribution and deterrence - factors which now have less weight in the overall sentencing mix for you.
92Whilst the path to rehabilitation might at one stage appear to be a difficult one for you, it does seem that your ability to access appropriate services and support and your motivation to change has a role to play. A Community Correction Order can be punitive, can achieve deterrence and may be suitable, even in cases of relatively serious offences - such as these - which might have previously attracted immediate term of imprisonment.
93I propose to impose an aggregate sentence as I am satisfied that the offences are founded on the same facts or form or part of a series of offences of same or similar character. In so doing, I bear in mind the principles of totality and proportionality, to which I have already referred ,which do have application to all charges on the indictment and the summary offences.
94In terms of that aggregate sentence, they are to be imposed on Summary Charge 12, that is, the fail to stop at police direction, Charge 2 the conduct endangering persons and Charge 3 intentionally expose emergency worker to risk by driving.
95In relation to those matters, Mr Eames, you are convicted and sentenced to 12 months' imprisonment in addition to a Community Correction Order of
two-and-a-half years duration, a period which takes into account the deferral period and the fact that you are presently subject to a Correction Order in the Magistrates' Court. In my view, that is a significant order and represents significant punishment. It also, in my view, provides further opportunity to foster your continued rehabilitation.96In terms of the order I impose, you are to complete 250 hours of community work. If there is community work on the Magistrates' Court order, those hours will be concurrent. You are to be subject to mental health treatment as directed, drug treatment as directed and to be supervised by the Department of Justice and Community Safety. One hundred and fifty hours of community work are to be offset on the treatment component. Three hundred and eighty-four days I reckon as already having been served.
97In addition to the conditions I have imposed, there are standard conditions. You are probably familiar with them but the first and foremost is that you must not commit any further offences during what amounts to a 30-month period and that is, any offences which could be punished by imprisonment. You need to report to the Office of Corrections within two working days. You are also required to advise your Corrections office of any change of address of where you are living and working and you need to do so within two clear working days.
98It is a term of all Corrections Orders that you must submit to visits as directed and you must obey all the instructions and directions of a Corrections officer. You cannot leave the State of Victoria without their permission.
99In my view, Mr Eames, this presents you with a chance to continue to change your life in a positive fashion, should you choose to take up that opportunity. The last eight months shows me that you can and that you will. Of course, this has to be with the supports that I intend be made available.
100Now, the order can be breached if you do not comply with it and the order can be breached, as I have said, if you reoffend with an offence punishable by imprisonment. If that happens, you will come back before me for breaking the order. I am going to have to deal with the charge that relates to breaking the order and I am going to have resentence you for these matters.
101Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty, you would have been sentenced to two years and eight months with a minimum of two years before being eligible for parole.
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102HER HONOUR: Now, I did think about judicial monitoring, Mr Blake, but I haven't done it, unless that's a suggestion you particular make, because he's subjected to judicial monitoring in the Magistates' Court.
103MR BLAKE: It's a matter for Your Honour.
104HER HONOUR: Did you want to be heard in relation to that, Ms Gang?
105MS GANG: No, thank you, Your Honour.
106HER HONOUR: Now, I can only place Mr Eames on the Correction Order if he consents.
107MR BLAKE: Yes.
108HER HONOUR: I'll certainly give you the opportunity to finalise your instructions. I can leave the Bench or you can approach.
109MR BLAKE: If Your Honour would allow me to approach. Can I just confirm the total affective sentence of imprisonment?
110HER HONOUR: Yes.
111MR BLAKE: Is it the case that Your Honour indicated that six months was cumulative on - - -
112HER HONOUR: No, six months was a sentence for the robbery, 14 days was cumulative.
113MR BLAKE: Fourteen days was cumulative, thank you, Your Honour.
114HER HONOUR: Affectively, it comes down to 12 months plus 14 days.
115MR BLAKE: Yes.
116HER HONOUR: Plus a very, very lengthy and significant Correction Order, obviously.
117MR BLAKE: And that's the 14 days that Your Honour said.
118HER HONOUR: Maybe I didn't say it, Mr Blake, so thank you for bringing that to my attention.
119MR BLAKE: I'm sure Your Honour would. If Your Honour would just permit me
to - - -120HER HONOUR: Certainly.
121MR BLAKE: Your Honour, I can confirm that Mr Eames understands his obligations under the order and certainly would consent to the Correction Order that Your Honour's intending to impose.
122HER HONOUR: Well that will print out shortly and we'll both need to sign that. I said during the sentencing exercise, Mr Eames, that you are to be commended for your efforts, they are nothing short of extraordinary. I can assure you that, if I didn't have that material before me, the sentence would've been very different from the one that I have imposed. You must, every single day in every single way, keep putting one foot in front of the other and maintaining the decisions that you've made recently for a better way of life. In the nicest possible way, I do not want to see you again.
123OFFENDER: Thank you, Your Honour.
124MS GANG: Your Honour, I understand that this leaves the issue of the compensation order. I've clarified with your associates that it was not made on
14 September so I filed a new draft that hopefully your associates have now but made today and I confirmed a sum of $950. It comes from paragraph 5 of the Amended Summary of Prosecution Opening.125HER HONOUR: Yes, well, that accords with my habits, Ms Gang, because I don't tend to make those orders unless I can be satisfied that the amount hasn't been pulled out of thin air.
126MS GANG: Yes.
127HER HONOUR: Mr Blake's indicating consent.
128MR BLAKE: No, Your Honour. It was the subject of discussion with Ms Lenthall the former prosecutor and it wasn't opposed at that time.
129HER HONOUR: Well I will make the compensation order as sought, thank you. I'll have that passed to you, Mr Blake, so that you can assist in taking Mr Eames through it.
130MR BLAKE: Certainly, Your Honour. Thank you, Your Honour.
131HER HONOUR: Thank you. I'll stand down then till 2.15.
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