Director of Public Prosecutions v Earley
[2023] VCC 1079
•22 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01632
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL EARLEY |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2023 and 2 May 2023 | |
DATE OF SENTENCE: | 22 June 2023 | |
CASE MAY BE CITED AS: | DPP v Earley | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1079 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Conduct endangering persons (1) – Dangerous driving whilst being pursued by police (1) – Aggravated reckless exposure to police officer to risk (2) – Possess drug of dependence (1) – Handle stolen goods (1) – Summary offences Unlicensed driving (2) – Use registered motor vehicle (1) - Commit indictable offence whilst on bail (1) - Relevant criminal history – Consideration of substantial and compelling circumstances which are exceptional and rare – Unable to find incarceration will lead to exceptional hardship
Legislation Cited: s.5(2)(H)(C) Sentencing Act 1991
Cases Cited:DPP v Lombardo [2022] VSCA 204; Nelson v the Queen [2020] VSCA 219
Sentence:Convicted and sentenced to Total Effective Sentence of 3 years’ imprisonment with a non-parole period 12 months’ imprisonment - 42 days’ pre-sentence detention declared as having already been served as part of the sentence imposed – s.6 AAA Sentencing Act 1991 declaration - Ancillary order Disposal order and licence cancellation
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. White | Solicitor for Public Prosecutions |
| For the Accused | Mr D. McGlone | SPA Lawyers |
HER HONOUR:
1 Daniel Early, you have pleaded guilty to the following offences:
(a) One charge of conduct endangering persons which has the maximum penalty of five years imprisonment.
(b) One charge of dangerous driving while being pursued by police which has a maximum penalty of three years imprisonment.
(c)
Two charges of aggravated reckless exposure of police officer to risk.
That offence has a maximum penalty of 10 years imprisonment and is a Category 2 offence.
(d) One charge of possession of a drug of dependence which has a maximum penalty of 30 penalty units of one-year imprisonment if the possession is not related to trafficking, and 400 penalty units or five years imprisonment in any other case. In this particular case, I have applied the first maximum penalty referred to in relation to that charge.
(e) Also, one charge of handling stolen goods which has a maximum penalty of 15 years imprisonment.
2 Further, you have pleaded guilty to the following summary charges uplifted to this court:
(a) Two charges of unlicensed driving. That offence has a maximum penalty of 60 penalty units or six months imprisonment.
(b) One charge of use unregistered motor vehicle which has a maximum penalty of 25 penalty units for a first offence or 50 penalty units for any subsequent offence and
(c)
One charge of committing an indictable offence while on bail which has a maximum penalty of 30 penalty units or three months imprisonment.
In sentencing you, I must have regard to the maximum penalties and these reflect the seriousness with which parliament regards each of the offences to which I have just referred.
3
You were 31 years old at the time of the offending and you are now 34.
On Friday 30 October 2020, you went to a service station in Newcomb driving a white ute. You were not licensed to be driving. This gives rise to the relevant summary charge of unlicensed driving. You were accompanied by another male whose identity is not known. The unknown male entered the store at the service station and hired a tandem trailer using a stolen driver's licence. As this was happening, you entered the store and were captured on CCTV. Both you and the other male then left and you reversed the car up to where the trailers were stored. You then attached the trailer to the ute and left the service station.
4 At about 2.10 am on Friday 4 December 2023, police were stationary in Hamilton Highway, Fyansford, as a Sergeant Groves was surveilling premises which had been the target of recent burglaries. While parked in a rear lane with the car lights off, Sergeant Groves observed a small blue Hyundai travelling at a fast rate of speed estimated to be at least double the speed of other vehicles. He estimated the speed of the car to be 120 kilometres per hour in the 60 kilometre per hour zone. Sergeant Groves pulled out and started to follow the car from a distance. The car went right from the Hamilton Highway into McCurdy Road then left into Autumn Street. The car was travelling at about 100 kilometres per hour in a 60 kilometre per hour zone. It turned a hard left at speed into Minerva Road. It then travelled at high speed through a red light as it turned into Church Street. The speed of the vehicle was estimated to be between 100 and 120 kilometres per hour the entire time.
5
The car continued turning left into Casey Street before turning right back onto the Hamilton Highway. At this stage, police were not in pursuit and had not activated their lights or sirens. The car, which you were driving, was followed by police who could see no reason for your erratic driving whilst they were observing you. You turned left onto the Geelong Ring Road and
increased speed up to between 140 and 150 kilometres per hour in the
100-kilometre per hour zone before turning left into Barrabool Road. The car then continued through the residential area at about 110 kilometres per hour before going through a red light when turning right into High Street. It then turned right into Mt Pleasant Road and back onto Barrabool Road. The car went around the roundabout at Scenic Road one and a half times which appeared to police to be you engaging in hooning. Your car then turned left into Rosyln Road and right into Thornhill Road reaching speeds of around 130 kilometres per hour in the 60 kilometre per hour zone before travelling through a red light at the intersection with Colac Highway.
6 The conduct to which I have just referred gives rise to Charge 1; conduct endangering persons of serious injury.
7
You then turned left into Ghazeepore Road, then left into Baanip Boulevard, then continued along turning left onto the Surf Coast Highway. At this time, another police unit who were north on the Surf Coast Highway placed stop sticks on the highway a few kilometres ahead of your car. Sergeant Groves who is still following, then moved up behind the car you were driving and activated lights and sirens. You then accelerated away at approximately
130 kilometres per hour giving rise to Charge 2, dangerous driving whilst pursued by police. Sergeant Groves then backed off as you approached the stop sticks at Pioneer Road.
8
As you approached this area, Constable Ned Weatherly was standing at the side of the road after laying out the stop sticks. When your car was about
15 to 20 metres from the stop sticks you swerved and drove directly towards Constable Weatherly. This gives rise to Charge 3, aggravated reckless exposure of a police officer to risk.
9
Constable Weatherly feared for his safety and immediately ran to his left to avoid being struck by your car. The car then passed Constable Weatherly some three to five metres from where he was standing. As the car passed by, the tyres drove over the stop sticks and immediately started to deflate. However, you continued to drive north along the Surf Coast Highway, pulling into the
left-hand bicycle lane. Sergeant Groves continued to follow you and activated the police siren and lights pulling up along the driver's side door as your car began to slow.
10 As you did this, you then pulled out and attempted to ram the police vehicle. Sergeant Groves took evasive action and moved into the far right lane to make space between him and your car. You continued to move across towards him. In the centre median strip was a power pole and it appeared you were trying to force Sergeant Groves into it. You then rammed into the left-hand side of the police car and in doing so both cars mounted the median strip and your car became wedged between the power pole and the police car driven by Sergeant Groves. This conduct gives rise to the further charge of aggravated reckless exposure of a police officer to risk, Charge 4.
11
After this, a female passenger got out of your car and started to run back south. I understand the passenger was an associate of yours from the pub. You tried to get out of the driver's side door but it was stuck against the police car. At this time, Sergeant Groves recognised you from multiple dealings. You ran north and were arrested a short distance away. The female passenger was also arrested. Police noticed the car you were driving bore registration plates which upon checking belong to a different car from a Hoppers Crossing address.
This gives rise to Charge 6, handling stolen goods.
12 Police checked the registration of the car you were driving and ascertained that the registration had been cancelled. This gives rise to the summary charge of using an unregistered vehicle. Police found a small Ziploc bag in the driver's side foot well and another in the centre console and believe these to contain methamphetamine and I understand that this is, in fact, what they did contain, therefore, Charge 5, possessing a drug of dependence.
13 Upon checking your licence status police confirmed that you were unlicensed giving rise to an additional summary charge of unlicensed driving. Further, you were on bail at the time of the offending giving rise to the summary offence of commit an indictable offence whilst on bail.
14 You were taken to the Geelong police station and interviewed. During the interview, you made admissions to driving the white ute to the Caltex service station on 30 October, but you denied knowing the trailer was rented using a false identification. However, you admitted that you had used it and returned it to the other male who had rented it. You also admitted to be unlicensed at that time.
15 You also made admissions regarding the pursuit with police but you denied intentionally ramming the police car. You said that your two front tyres had been punctured and you lost control of the car. In respect to the driving incident on 4 December 2020, you said that the car was not yours but belonged to a person called Nathan who owed you money. You also said that the car had been in your possession for about five days and you were going to get a roadworthy on it. In relation to your erratic driving, you said that by the time you got back on the Hamilton Highway, you were well and truly aware that the police were following you. You said you were just trying to get away from police.
16 In relation to the incident concerning Constable Weatherly, you said you saw the police officer laying out the stop sticks and when you saw him you thought you could get around the stop sticks. You denied heading towards the office although you conceded that it may have looked that way. You said because the officer was laying out further stop sticks, you swerved left just to hit the actual spikes. After you have hit these, the car was pretty hard to control and was swaying left and right, you said. You denied knowing the registration plates were stolen and you denied knowing anything about the methylamphetamine in the console.
17
I sentence you on the basis of the facts set out in the prosecution opening.
In relation to Charges 3 and 4, I make it clear that I sentence you on the basis of you having a reckless state of mind when you exposed each of the victims to a risk of safety. However, I do not accept that the car was out of control after you went over the stop sticks to the point where you had no control over it. Clearly, you did and rather than choosing to stop you drove as you did before your car was forced to a stop when it became wedged.
18 At the time of the offending for which I now sentence you, you were on bail relating to a single charge of possess methylamphetamine on 17 October 2020. Mr Earley, your offending is most serious and deserving of a punishment which is just in all of the circumstances. Your offending must be firmly denounced. You drove in the most outrageous manner over some distance and for a sustained period of time, endangering other road users of sustaining serious injury and your conduct towards the police officers was deplorable. Rather than pull over when you became aware that police were after you, you engaged in sustained, erratic and dangerous driving. It is most fortunate that no one was physically hurt or worse, especially Constable Weatherly who was in a most vulnerable position, having no protection of a vehicle or anything else as you drove towards him at speed.
19 In sentencing you, I take into account the impact on the victims, in particular, Constable Weatherly who provided a victim impact statement. He said that he joined the police force as a keen fresh-faced 21-year-old with high hopes that he could protect the public and make a lasting difference on someone. He said that for the past three years, he had tried his very best to do those things to help people, protect people and support those in need. He spoke about his family background and of his devotion to his family and their devotion to him. He said that your actions affected him in a profound way. He addressed you directly in his victim impact statement setting out various aspects of your offending and saying that as a police officer, all he was trying to do was stop you from driving in order to protect the public.
20 He said that as you were driving towards him, he froze and he has since replayed the moment over and over in his head. He said that as the car was hurtling towards him, he thought that he was going to die. He said that your car could not have been more than five metres from him when he ran onto the other side of the road, being the side of the road where other cars could have come the other way and hit him. However, all he could think of was getting out of the way of your car.
21 He detailed his memories of running after you after you got out of the car and the relief he felt when he was able to arrest you. He said that after this night he went back to his regular duties but sometimes he thought about the incident but he had wanted to be stoic as his police officer parents had been. Therefore, he suppressed what was in the back of his head which was the realisation that he could have died that night. He tried to get on with his normal life. However, the first time he drove along the Surf Coast Highway after the incident, he became overwhelmed with emotions with his heart rate rising, starting to sweat profusely and the memories of what had occurred came flooding back to him. He wanted to break down and cry in that moment but felt he had to be tough and put on a brave face for his colleagues and everyone else, including the community.
22
He went home that night and cried for hours on end but felt so ashamed as he thought he was weak. He thought about the impact on his family if he were no longer around. He said that since this time, each time he has driven on the
Surf Coast Highway and had seen a car speed past he had been reminded of the night you offended and of your careless actions with the recurring image of your car hurtling towards him and the recurring sensations and elevated heart rate and forehead sweats as well as feeling a tickle in his stomach. He said that these sensations might last from seconds to hours.
23 He said that he was reminded of the incident both at work and in his personal life, still experiencing nightmares of the image of your car hurtling towards him. He said the feelings he's experienced have led him to question whether he should continue as a police officer which was a job that he loved and that he loves. He said he had researched what he was going through and found it was a normal response to a traumatic event. However, he said that it was not normal for you to make a conscious decision to put him in danger that night for whatever reason and for whatever reason you did so.
24
He said he has since learnt that you have issues with substance abuse and felt sorry for you for that reason. He said he truly did hope that you got help in this. However, it did not excuse your actions. He said he would always live with the scar of the impact of your offending upon him which he had previously described. He said your offending had changed his life forever. He said he wanted you to remember his words for the future so that you think about the next action that you take and how it might affect someone. He said he hoped you made a positive change in the world to help someone rather than hurt them like you had hurt him. I congratulate Constable Weatherly on his most courageous and articulate victim impact statement. These are the very real effects of the impact that your offending had upon Constable Weatherly.
No doubt the impact that you had on Sergeant Groves was also a frightening one.
25 You have a criminal history which commenced in October 2019, where you were dealt with for a large consolidation of offences including possess and traffic methylamphetamine, a number of dishonesty offences, three charges of driving whilst suspended and fraudulently using a number plate which resulted in an aggregate term of imprisonment of 120 days which was declared as time served.
26 On 18 March 2020, you were convicted of dishonestly receiving stolen goods and committing an indictable offence whilst on bail and you were fined $1,500.
27 On 5 June 2020, you were convicted of driving whilst disqualified, unlicensed driving and two charges of possessing methylamphetamine as well as one charge of committing an indictable offence whilst on bail.
28 You were sentenced to an eight-month Community Corrections Order where you were required to undergo 80 hours of unpaid community work. I have also taken into account the various driving offences over and above those appearing in your police criminal history which appear in the Road Safety Act certificate which includes some speeding offences, careless driving and failing to report an accident to the nearest police station.
29 Your most recent offence recorded there is unlicensed driving which occurred on 30 March 2021 and theft of a motor vehicle which occurred on 5 June 2020 as clarified by the prosecution today.
30 You were also dealt with for driving whilst disqualified which occurred on 7 August 2020. You were sentenced to 52 days imprisonment in relation to those offences on 2 July 2021 in the Geelong Magistrates' Court. Your criminal history and subsequent matter or matters have some relevance to the offending for which I now sentence you, although it must be said that the offences before me appear to mark an escalation in your offending behaviour. When I refer to the subsequent matters, I'm very mindful of the fact that there is only one matter, the unlicensed driving, charge which I have referred which you committed after the offending before me. I note that you have not committed any further offence since driving whilst unlicensed on 30 March last year.
31 In sentencing you, I take into account your background.
32 You were born in Geelong but moved with your family to Queensland when you were less than 12 months old. When you were six years old, sadly, your mother died of breast cancer. You have a sister who is two years older than you and a brother who is four years older as well as three step-siblings. Two years after your mother's death your father re-partnered with a woman called Tanya who had three children of her own. When you were 11, the family moved back to Geelong after your father was able to obtain work at Alcoa.
33
You performed well academically at primary school and in sport. You were made school captain of your primary school. You later attended a local secondary college commencing Year 12, but you did not complete it.
You commenced to focus your attention on soccer, playing at a high level to the point where it appeared likely you would be selected to attend the Australian Institute of Sport. However, against advice, you chose to play for your school's Australian Rules team and while doing so suffered a significant hand injury which prevented you from attending soccer training. Unfortunately, this took you out of the selection pool for the Australian Institute of Sport so you were unable to obtain a placement with the institute.
34 According to your counsel's written submissions, you had not given serious consideration to a career outside of soccer and by default, you undertook an apprenticeship as a boiler maker. Subsequently, you obtained your basic and advanced rigger and dogman's certificates, working with heights certificate and other certificates which allowed you to move into engineering and construction. However, you maintained your interest in soccer and sport more broadly, playing in the Victoria Premier League for the Melbourne Knights up to 2015. You also played local cricket and table tennis and you were proficient at golf.
35
In 2013, you were involved in a car accident which led you to owe $120,000
to AAMI, the insurance company. You obtained work in the mining industry with the intention of paying off the debt and ended up working in Western Australia for the next six years.
36
You were employed by various companies in Western Australia and worked
28-day rotations with you flying home for a seven-day break then commencing the next rotation. You were able to pay the debt you owed to the insurance company but you had little else to show for the work you had done after the
six years in Western Australia.
37 You suffered an injury to your knee which led to a knee reconstruction in 2018 which, unfortunately, ended your sporting career. You instructed your counsel that this led to significant depression, compounding your earlier sense of grievance of losing out on going to the Australian Institute of Sport and financial difficulties caused by the car accident in 2013. I am quoting in part from the written submissions of Mr McGlone dated 28 November 2022, paragraph 9.
38 After working for six months in steel fabrication with BJL you commenced work for your partner, a Ms Stoop's father's company, Multi Solutions. You worked alongside Ms Stoop's brother who had a significant addiction to methylamphetamine. From this time your life began to spiral out of control. This is reflected in your criminal history. Your counsel submitted that you had otherwise been a man of good character with a solid work history and I accept that to that point you had been.
39 You are somewhat estranged from your father who was a bricklayer and alcoholic who now lives in Queensland with his older brother. You attribute your interest in soccer to your father who was born in Belfast with both he and his father being skilled players. You remain on good terms with your stepmother, Tanya, who lives in Victoria.
40
You have known Hayley Stoop since you were 16 years old and remain in a stable relationship with her. Ms Stoop operates a cosmetics company and you have one child together, Nya, who was born in June last year. Nya was born following pregnancy complications after a gestation period of only
26 weeks which is considered to be extremely premature. As a result, Nya has had to have a tracheostomy due to suffering bronchopulmonary dysplasia. The court adjourned this matter on a number of occasions in order for you to support Ms Stoop during her difficult pregnancy and the complications she was experiencing with this as well as to enable you to provide evidence to the court as to Nya's needs and her and Ms Stoop's dependency upon you to help with these.
41 This culminated in a further plea hearing on 2 May this year where evidence was given by Dr Joanne Harrison, paediatric respiratory physician, as well as your partner, Ms Stoop. Nya had been discharged from the Royal Children's Hospital the previous day. You had completed the training necessary to be a carer for Nya at home. However, you were not ultimately approved as a carer and this role was assigned to Ms Stoop and her mother, Sally.
42 The evidence before me was that Nya was in need of close monitoring 24 hours a day and that her trained carers had to be able to look after her tracheostomy, be able to change this and to recognise if it became obstructed or came out. They need to be able to troubleshoot any problems with the ventilator equipment and be able to recognise if Nya's medication condition changed and respond appropriately if it did. She also required - that is Nya also required a nasoduodenal feeding which required additional equipment and care and she had a good deal of developmental care needs.
43 Doctor Harrison gave evidence that Nya needed a good deal of ongoing therapy to help her to make developmental gains and thrive in the home environment such that the burden of care on adults looking after her were 'extraordinarily high'. This meant that effectively, there would be an intensive care unit set up in your home which involved her care around the clock. You and your wife and mother-in-law had undergone a very robust training program in order to provide the intensive care level of support that was required. Doctor Harrison agreed that in giving such intensive care to Nya who could not be left unsupervised for even a few seconds, this would impact on a carer's ability to do other things in life. She gave evidence that it would be optimal for you to be involved in your daughter's care both as a support to the two approved carers and in your capacity as a father.
44 In this regard, Dr Harrison agreed that you were a doting and devoted father and would be a valuable assistant to your wife and mother‑in-law. The reason you were unable to be approved was you could not consistently demonstrate the skills for a period of 48 hours which were required in order to satisfactorily complete the training course. Doctor Harrison said that her hope for Nya was that she would eventually be able to breathe independently before she reached five years of age, but this was not something that was likely to be achieved in a time frame of months. Doctor Harrison gave evidence that additional resources would be made available such as a nurse at the end of a phone around the clock in order to provide clinical advice and some carer hours of 24 to 30 hours per week which would be allocated such that some respite could be provided to the trained carers.
45 However, at the time Dr Harrison was giving evidence, lay carers had not been recruited or trained and she said it normally took at least a couple of months for this arrangement to be put in place. When cross-examined, Dr Harrison agreed that unless there were two approved carers Nya could not have been discharged home. This was because only one carer would suffer burnout very quickly and could not leave Nya for any reason such as having a shower or answering the door. She agreed that in relation to the discharge, ultimately, the assessment was whether it was safe and medically viable to release a patient into the home environment. She said that it was a minimal requirement that two allocated carers were approved in relation to Nya and she would not have been allowed to go home the previous day if there were not two trained carers to assist her. She agreed that the hospital had deemed that it was a safe enough environment for Nya to transition into the community due to the allocation of Ms Stoop and her mother as her trained carers.
46
However, she said that it was a huge burden on two people to be in this position so they always encourage families to try to increase the support network.
She said that without any respite the two carers would quickly burn out.
She said that Nya would certainly be eligible for NDIS and that the paperwork had been submitted for her to be enrolled for this. However, she was not sure of the stage the application had reached. She gave evidence that Nya's condition had improved since her birth but she still required mechanical ventilation with additional oxygen every minute of the day. She remained a very medically vulnerable and fragile child.
47 She said that if the two carers were unable to sufficiently look after Nya or something occurred which compromised Nya's health, she would be readily accepted back to be assisted at the Royal Children's Hospital. This could also occur if one of the carers became unwell or something happened which meant that the child would need to be readmitted.
48 Doctor Harrison gave evidence that there was very clear evidence and it had been her experience that children flourish in a home environment. Although the care from nursing staff from the ward was excellent for patients, it was not the same as a child being home with their parents. This is why they developed a comprehensive program of training to try and facilitate the discharge of patients like Nya as they knew that they would thrive much more in their home environment with their parents. She agreed that this assumed that the home environment was one where both parents were devoted to the child's care and pro-social. She agreed that the complex care program interacted with families in all kinds of different situations such as a single-parent family or families where there was a stepfather or stepmother and where grandparents or foster carers were the primary carers.
49 Doctor Harrison said she did not know much about why you were at court. However, she was aware that there was some prospect of you being incarcerated which was one of the reasons that they also trained your mother‑in-law as an alternative second carer. She said she was sure that the prospect of possible incarceration had impacted on your ability to undertake the training as this was an additional stressor. She said that this was very clear during the process. She agreed that your mother-in-law was trained as an alternative second carer as a contingency plan in the event that you were unavailable. She said that everyone from the hospital and the family wanted Nya to get home and they had all been working towards this.
50 Hayley Stoop also gave evidence at the plea hearing as well as providing a character reference. In her oral evidence, she said that she was a business owner of a cosmetic clinic in Geelong. She said that she had staff at the business and that they provided various beauty services. She had run the business for five years and this was her only source of income. She said that she and you had been partners for 17 years and she was aware of your offending in this matter as well as subsequent offending. She agreed that you were released from custody in June 2021 and at some stage she became pregnant. She also agreed that you had previously had difficulties with methylamphetamine use but she said you had addressed these, especially once she became quite unwell.
51 She gave evidence that around the 20-week mark of her pregnancy, she was admitted to hospital and was diagnosed as suffering from severe pre‑eclampsia. She said that over time her health deteriorated and her blood pressure was quite high. She was unable to work once she was admitted to hospital so she required support from you. Towards the end of her pregnancy, her condition further deteriorated and she was diagnosed with Hellp syndrome which was life-threatening. The only way to resolve the condition was to take out the baby which was the reason Nya was born so prematurely. Ms Stoop said she was diagnosed with everything apart from gestational diabetes, although, she had not reached the stage of being able to be tested for this.
52
She said that while she was admitted to hospital, you helped financially to keep a roof over your heads or their heads. You also helped in the business, cleaning it and also helping her with her bookwork. She said that she reconciled accounts and did all of the management side of things, including payroll.
She said you would also run errands needed for the business and cared for her during the times that she was able to leave the hospital by just helping out around the home with meals and day-to-day living. She said that you were hands-on helping her when she started having complications with the pregnancy. That there were times that she was not coping with anxiety and you would not leave her side for the entire period.
53
You would either get a lift to the local hospital or use public transport or get a lift when she was transferred to the Monash Hospital in Melbourne. You would bring her clothes even when due to COVID restrictions you were not able to visit her. You would see her through a window at the hospital and do what you could to provide emotional support as you could tell she was not coping.
She said that just knowing you were there made a big difference. She agreed that it was especially hard while being stuck in isolation due to suffering from COVID and that Ms Stoop became your focus during this tumultuous time.
54 She said that her father understood the reason for you having to transfer your concentration to her care and so made allowances for your absence from work during this time. She said that after Nya was born you were told that her survival chances were not very high and that you and she knew it was going to be touch and go for quite some time. She said that you were there for the whole time and did not leave her side. She said that you continued to help with the business after Nya was born after well as being present with her and Nya after Nya's birth. She said that you took the load off her with her business but that her business had deteriorated quite significantly. She said that you did everything you could to ensure the business did not fail.
55 In relation to training as a carer for Nya, she said that you were a lot better at troubleshooting in relation to the equipment than she probably due to your previous employment and understanding of the equipment that she required. She said that she felt a lot more confident when you were around and she did not feel to panic if the machine was not working properly. She said that you managed to troubleshoot and figure out the problem a lot more quickly than she did. She said this would avoid the need of going through calling resources in to try and fix the problem, saying that the window of opportunity before things became quite dangerous for Nya was less than 90 seconds. She said that there had been times when alarms were going off in relation to the equipment and that this was most stressful. However, she felt that because you have a better understanding of the machinery, you managed to sort things out very quickly.
56
Ms Stoop agreed that the two of you worked well together. She agreed that while her mother was the other trained carer, she felt that the present situation with the court proceedings had stopped you from qualifying as a carer.
She said that you did all the components separately fine, but it was only towards the end of the 48-hour requirement that things became stressful for you.
She said that they had worked out a roster of carers which included her mother and you. She said that her mother was originally there to provide support for you so that there were two carers which would enable Ms Stoop to work so she could financially support the household with daily expenses. She said, obviously, circumstances had changed and she was now in a position where she would have to potentially sell the business if you were incarcerated.
57 She said that the original plan was for you and her mother to be the carers while she ran the business. However, it would now be envisaged that she and her mother would be the carers while you ran the business. At the same time, you would be assisting with Nya was you would be more than capable of doing everything that she could do to look after Nya on a day-to-day basis.
58 Ms Stoop said that you and she and her mother were yet to receive an allocation of respite carers and she had been told that it would be months before this occurred. She said that they were told that it would take even longer to obtain NDIS support, even with the backing of the Children's Hospital. She said that there was no one else that could provide care for Nya besides you and her mother due to the high level of training required.
59 She gave evidence that you were very hands-on in your care of Nya, that you were a doting father and she would still confidently leave Nya in your care if it were not for the requirements that need to be met before being approved as a carer. She believes that you are more than capable of caring for your child. Ms Stoop said that without you being at home the dynamic would change as Nya would not have her father present. Her medical care would change and there would also be financial changes as she would have no option but to sell the business which would not cover the cost of the debt she had incurred in relation to it.
60 She said that she would not have employment and that even though she would have support for her mother you could not provide for them financially and neither could her mother. She said she did not know how they would cope without you. She said it would be extremely hard if you were removed from the situation. The minimum of two people caring for Nya would not be enough as it was so easy to get burnt out. She said that having had Nya home less than 24 hours they had already expressed difficulties with you having to continuously attend upon Nya because of her ventilator and alarms going off. She said that she would be the only one caring for Nya every night if you were not there but that having extra help would take a lot of pressure away and would also keep her employed and bring income into the house.
61 When cross-examined, Ms Stoop said her mother had temporarily moved into the house but that if you were incarcerated, she would have to pack everything up and move to her mother's house somehow. She said that her mother was basically a backup so that you were still caring for Nya on a day-to-day basis. But if there was something that you were unable to do medically, her mother was there to help. She said that you would be there to run the household and being able to do daily household chores. She said that her mother lived by herself and that if you were incarcerated, she would have no choice but to sell her business at a loss and move in with her mother. She said that she and the baby would have to adapt which she contemplated would take some time because of all of the equipment involved in Nya's care and that it required a lot of power. She said that they had to change their house recently to accommodate for this so they would have to wait for this process to happen again as you could not run the risk of having a power surge in the house and not having any power supply to feed Nya's life support.
62 Ms Stoop agreed that she had heard Dr Harrison's evidence in relation to her mother being a contingency plan to a point. However, this did change slightly through the process she said. She said this was because her mother had a medical episode at the hospital which meant that there had to be a reassessment about her ability to cope with caring for Nya. Ms Stoop agreed, however, that her mother ultimately passed the acceptable medical carer test but she said that she believed that she was more a back-up and not a primary carer for Nya. However, she agreed that she was one of the nominated carers rather than you having this role. She agreed that part of the reason her mother was involved in the situation initially was because she was aware that prison was a possibility for you.
63
When re-examined, Ms Stoop said the medical episode suffered by her mother had been a panic attack or a meltdown. She said this required hours of intervention from many hospital staff at the Children's Hospital which red flagged the situation because they were worried about her care. She said that Child Protective Services or Department of Families, Fairness and Housing had become involved and were yet to provide a report. However, the person looking after your family's case has said that the support network of three of you was more than capable of providing a safe environment for Nya. She said that she had been told that the report took months to write; that the writer had told her that the three of you were more than enough to provide an appropriate level of care for Nya without the risk of burnout. Ms Stoop said that she understood that burnout was a huge issue when dealing with a child requiring high medical needs. She said that her mother was medicated for her particular issue.
She said that once her mother had the episode the matter needed to be investigated to make sure there was no the need of keeping Nya in hospital.
64 She agreed that if things did not go too well with her mother and herself looking after Nya then it was an option for the hospital could take Nya back. She said that the only reason that Nya was no longer in intensive care at hospital was that she had been taken off strong event medications and was in a position where she was more stable to be able to be brought home.
65 I have recently received a letter from a Bree Cartilage, senior Child Protection practitioner, Department of Families, Fairness and Housing dated 6 June 2023 where most inappropriately, in my view, she asked that you be dealt with in a way that does not involve a prison term and a 'recommendation' to this effect. It is not the role of that person to make such a request or a recommendation. But I note the contents of her letter. A good deal of which were already the subject of evidence in this court.
66
I note also that if you were to be imprisoned DFFH would have serious concerns for the family's capacity to continue to provide adequate care for Nya.
As against this, however, I also note that the Royal Children's Hospital saw fit to appoint Ms Stoop as her mother as the two official carers and that Ms Stoop's mother was trained as a contingency plan in the event that you were imprisoned. That there is the prospect of some respite care for your mother-in-law and your wife as well as NDIS support and on-call advice and ultimately the ability to return Nya to the Royal Children's Hospital if the need arises.
67 I have taken into account the report of Mr Cunningham, psychologist, dated 23 February 2023, who found no mental illness. I have noted the other matters in the report. No Verdins considerations appear to apply in your case. I have factored in the character material in your case. Your aunt, Sharon Jones, speaks well of you and spoke of the profound impact on your family that the loss of your mother had caused. She also spoke of a strong family support that was available to you. Ms Stoop spoke very highly of you and how dramatically you had turned your life around. She spoke of your good behaviour in compliance with bail conditions and the downward spiral that your life had taken in fairly recent times after becoming addicted to drugs.
68 Charges 3 and 4 are Category 2 offences. In your case, this means that unless you can show substantial and compelling circumstances which are exceptional and rare in relation to those charges, I must sentence you to an immediate term of imprisonment and this cannot be a term to be served in combination with a community corrections order for those offences. Section 5(2)(H)(C) of the Sentencing Act 1991 provides in determining whether there are substantial and compelling circumstances under sub-s2H(e), the court
(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in s5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to:
(i) the offender's previous good character other than an absence of previous convictions or findings of guilt; or
(ii) an early plea of guilty; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
69 Section 5(2)(I) provides that in determining whether there is substantial compelling circumstances under sub-s2(H)(e) the court must have regard to:
(a) the parliament's intention that in sentencing an offender for a Category 2 offence only an order under division 2 of part 3, that is not a sentence of imprisonment imposed in addition to making a community corrections order in accordance with s44 should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify departure from such a sentence.
70 Your counsel submitted that gaoling you would result in exceptional hardship to your partner and child in that there would be a real threat to your child's survival if you are not there to assist as you play a key supportive role in your child's care. He further submitted that gaoling you would also cause tremendous stress to your partner and her mother of an ongoing nature, especially in the short term whilst there are no respite carers available.
71 He submitted that your rehabilitation had been demonstrable and radical by virtue of the most responsible role you played in respect of your child and your partner; that you had undertaken counselling, are now drug-free, are engaged in employment and have not committed another criminal offence for a substantial period. He submitted that during the substantial period of delay in this matter largely indulged by this court for you to tend to and support your partner and baby, you had demonstrated your positive path of rehabilitation.
72 Whilst accepting quite properly that in considering whether the test of substantial and compelling circumstances is made out for the purposes of s5(2)(H)(e) of the Sentencing Act 1991, I cannot factor in your prospects of rehabilitation, such considerations were still relevant to my assessment of the weight which needed to attach to specific deterrence and protection of the community.
73
Referring to the decision of Director of Public Prosecutions v Lombardo [2022] VSCA 204, Mr McGlone submitted that the weight that ought to attach to such principles was significantly diminished in your case. He said that when one looked at your case in a global fashion and, in particular, the situation in respect of your daughter and her care, your important role in this and exceptional hardship which would result from your incarceration that substantial and compelling circumstances which were exceptional and rare were made out.
He submitted that I ought impose a community corrections order in your case or as I understood his submission in the alternative, a combination sentence with time served being the period you have already spent on remand in relation to this matter.
74 The learned prosecutor submitted that the threshold had not been reached, arguing that things might well have been different if you had been appointed the other trained carer. However, Mr White referred to s5(2)(H) pointing to the fact that prospects of rehabilitation as such cannot be factored in when considering whether the threshold had been met and that an offender's personal circumstances had to be given less weight than other matters, such as the nature and gravity of the offence. He said that this ought:
'Be read in light of parliament's intention that ordinarily a term of imprisonment not in combination with a community corrections order be imposed for general deterrence and denunciation reasons'.
75 He submitted that the provision gave primacy to general deterrence and denunciation and that the latter could not be modified by an offender's personal circumstances. He submitted that in your case a head sentence with a non‑parole period was warranted he. He accepted that in an overall sense, there were matters of mitigation that were relevant to my consideration of an appropriate head sentence and non-parole period. But he also pointed to the seriousness of your offending. In particular, the two charges of aggravated reckless exposure of police officer to risk which attracted the relevant provisions which I have just referred. He also referred to the significant impact of your offending upon Mr Weatherly.
76 He submitted that Lombardo was not a case that was helpful to you as in that case and in a number of others which all involved the offence of dangerous driving causing death - obviously, a different offence to that which you have committed - but in all those particular cases there was low moral culpability on the part of the driver. He pointed out that in cases where a sentencing judge had found that the s5(2)(H) exception had been found out the starting point was a judicial finding that the moral culpability of the driver was at the lowest level. He submitted that in contrast your moral culpability in respect of the offending was at the highest level and there was nothing which reduced this.
77 There is a good deal of force in the learned prosecutor's submissions. As he said, in Lombardo the court said general deterrence and denunciation are always important in these cases which is why non-custodial sentences are exceptional but the strength of those considerations again is influenced by the nature and gravity of the offending. They are stronger in cases where the offending is more egregious.
78 At the end of the day, I am afraid I am unable to find that incarceration will lead to exceptional hardship to your child or family if you were to be imprisoned in circumstances where the hospital released your baby into the care of your partner and her mother as trained carers knowing that there was a prospect that you would not be available to provide back-up.
79 Whilst your presence, obviously, would be optimal it is not essential. If things become too difficult then it is open for your partner to take Nya back to hospital and have her cared for there. There is also the prospect of respite care on the horizon, 24-hour on-call nurses assistance and the prospect of NDIS support. I am afraid that your partner's difficulty with running her business and accommodation in your absence are also not enough in themselves or in combination to amount to exceptional hardship.
80 In your case, factoring in all relevant matters, I assess your prospects of rehabilitation as fairly good. I place less than moderate weight on specific deterrence and protection of the community but strong weight must attach to general deterrence and denunciation. Applying the relevant provision in the way set out in Lombardo I am afraid that the relevant offending which attracts s5(2)(H) is too serious and your moral culpability is too high to come within the exception, notwithstanding matters relied upon by you and noting that your personal circumstances are to be given less weight.
81 For the purposes of this exercise, I have also taken into account your pleas of guilty and other matters in mitigation. But for the purpose of this exercise when examining when you came within s5(2)(H) I have not been able to take into account the stage at which the pleas were entered as such. Less to be said otherwise, I am also most mindful that your prospects of rehabilitation are not to be factored in for the purposes of s5(2)(H). However, my assessment of these are relevant to the weight that needs to attach to specific deterrence and protection of the community in keeping with Lombardo.
82 Such assessment is also relevant to the other offences and having found that the exception does not apply to Charges 3 and 4 to the period of imprisonment that I impose in respect of these. In sentencing you, I have had regard to the case of Nelson v The Queen [2020] VSCA 219, the court's remarks and the sentence in that case. Noting that the court observed that at that stage, a sentencing profile had not been established in relation to the offence of aggravated exposure of a police officer to risk. In any event, current sentencing practice is but one and not a controlling factor.
83 In sentencing you, I have factored in the delay in this matter although this was largely due to the court indulging your need to support your family and child. However, you have had the anxiety of matters hanging over your head during this time which I have taken into account in your favour and that you have used the period to show impressive steps towards rehabilitation.
84 I allow for a fairly significant discount on the sentence you would otherwise receive in circumstances where you pleaded guilty to a number of charges after others were withdrawn following a case conference on 11 May last year.
85
I note that you ran a contested committal hearing where I understand
five witnesses, including Constable Weatherly, were cross-examined and you entered pleas of not guilty to all charges at that stage. However, in pleading guilty after the case conference you saved the witnesses the time and trouble of giving evidence at trial and you saved the community the time and expense of a trial. Also as I say, charges were withdrawn following the case conference which I have also factored in. Further, your sentence ought reflect a palpable allowance in your favour for your contribution to the reduction of trial backlogs due to the pandemic.
86 I accept that you are remorseful for the situation that you have landed yourself in and its impact on you and your family. However, I am not as clear about your remorse in relation to the victims in this matter or insight as to the seriousness of the offending as such. Having said this, I do note that you have turned your life around dramatically which can be seen to reflect remorse by action in effect for your offending.
87 I also allow that time in gaol will be a good deal harder for you due to your concern for your partner and baby in your absence. I have also factored in the 42 days you have previously served in relation to this offending. It would have been a harsh form of custody due to COVID-19 restrictions and that any further period in gaol might well be harsher due to various restrictions in place from time to time. Although, I understand that there has been a good deal of relaxing of restrictions as presently advised.
88 In the end, I have arrived at a sentence which in my view gives appropriate weight to all relevant sentencing considerations in this case. Whilst I am of the view that a head sentence with a non-parole period is appropriate in view of the matters in mitigation, I have determined that there ought be a significant gap between the head sentence and non-parole period. I have also had regard to the principle of totality. It is my strong wish that you be considered for eligibility for parole as soon as your non-parole period falls due in a bid for you to be released into the community sooner rather than later. Of course, much of that depends upon your conduct whilst in prison, but I do express a strong wish that you be considered in a favourable light all things being equal.
89 You are convicted of each of the offences on the indictment and of the summary offences.
90
Pursuant to s89 of the Sentencing Act 1991 in relation to Charges 3 and 4, all driver's licences are cancelled and you are disqualified from driving for the prescribed minimum period of 24 months in respect of each of these charges and both periods are to run concurrently with each other so it is a total of 24 months.
I make a disposal order sought by the prosecution which is not opposed by you.
91 You are sentenced to the following terms of imprisonment.
(a) Charge 1, 12 months;
(b) Charge 2, six months;
(c) Charge 3, two years six months which will be the base sentence;
(d) Charge 4, 18 months;
(e) Charge 5, one month;
(f) Charge 6, two months.
92 In terms of the summary offences
(a) Charge 1, one month;
(b) Charge 12, one month;
(c) Charge 18, two months;
(d) and in relation to use unregistered motor vehicle you are fined $100 with conviction.
93 I direct that three months from the sentence on Charge 4, two months from the sentence on Charge 1 on the indictment and one month from the sentence on summary Charge 18 you serve cumulatively with each other and with the base sentence, producing a total effective sentence of three years and I direct that you serve 12 months before becoming eligible for parole.
94 I declare that you have already served 42 days by way of pre-sentence detention which will be deducted from your sentence. I understand that you may upon application also have available to you emergency management days. If not for your pleas of guilty I would have sentenced you to a total effective sentence of five years with a non-parole period of three years.
95 HER HONOUR: Is there anything arising?
96 MR WHITE: No, Your Honour.
97 HER HONOUR: All right. Yes. Thank you. If you can remove - thank you.
98 UNIDENTIFIED SPEAKER: Can I get to say goodbye?
99 HER HONOUR: I'm sorry, you can't up here. You'll have to do that at another venue. We'll adjourn. Thank you.
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