Director of Public Prosecutions v Ennis
[2021] VCC 1367
•16 September 2021
m
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 21-00705
Indictment No. L10000960
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW ENNIS |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 Sept 2021 | |
DATE OF SENTENCE: | 16 Sept 2021 | |
CASE MAY BE CITED AS: | DPP v ENNIS | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1367 | |
REASONS FOR SENTENCE
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Catchwords: Dangerous driving whilst pursued by police on one date; On second date; conduct endangering life; protracted, extraordinary driving; high speed, red lights, interference, multiple motorists and passenger placed at danger of death. Reckless exposure of police member to risk by driving; possession of drug of dep; five summary offences: fail to stop, exceed PCD, fraudulent use of identifying number, resist police, drive whilst unlicenced. Some relevant criminal history but only three appearances. 30 at time of sentence. Guilty plea; Lengthy period at Odyssey house.
Cases: Akoka v The Queen [2017] VSCA 214; Worboyes v The Queen [2021] VSCA 169
Legislation: s.16(1A)(i), s.16(3D), s89A of the Sentencing Act 1991
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Martin | Office of Public Prosecutions |
| For the Accused | Mr J. Barreiro (Plea) Ms Y. Anderson (Sentence) | Emma Turnbull Lawyers |
HIS HONOUR:
1 Matthew Ennis, last Friday, you pleaded guilty to four charges on the indictment filed before this court. Those charges are one charge of dangerous driving in the course of a police pursuit, one charge of conduct endangering life, one charge of reckless exposure of a police member to risk by driving and a charge of possession of a drug of dependence. You have also pleaded guilty to five summary offences being fail to stop at police request, exceed the prescribed concentration of drugs, fraudulent use of an identifying number, resist police, as well as drive whilst unlicenced. The summary matters all relate to the second incident.
2 You have admitted a short criminal history which is conceded to be of at least some relevance to my task.
3 You were born on 10 December 1990 and you were 29 years of age at the time of the offending in December 2019 and you are 30 years of age now. You turn 31 in December of this year.
4 The agreed summary sets out the correct maximum penalties and I am not going to restate them.
Facts
5 Ms Martin appeared to prosecute at the plea and relied upon a lengthy written summary of prosecution opening dated 13 August 2021. That opening was marked as Exhibit A. Your counsel Mr Barreiro told me it was an agreed summary other than the reference to a speed of 205 kilometres per hour referred to in paragraph 17(a)(iv). That same speed is also listed in the annexure to the summary at point 53. Mr Barreiro submitted that the camera footage from the Police Air Wing had the speed skipping around at that point and whilst it was undoubtedly a very high speed at that stage, in the vicinity of 180 kilometres per hour, I could not be satisfied beyond reasonable doubt it was over 200 kilometres per hour. The prosecutor Ms Martin really did not cavil with that submission. I watched the footage again after the plea had been conducted and Mr Barreiro’s submission is a sensible one. I accept it. As he said though, in the scheme of things, it was not a large point given the features of the driving in this case. He was right in that respect as well. The Air Wing footage is quite startling, showing the very many occasions that you endangered other people. The annexure to the summary which I have referred to also has a breakdown of some of the ‘highlights’ or as I said on the plea, the ‘lowlights’ of your driving.
6 As the facts are agreed, I see no need then to set them all out in these, my reasons. The agreed summary and the footage does that and I will sentence pursuant to that material. This was undoubtedly serious offending and that much is conceded.
7 By way of very brief summary then, on 30 December of 2019 at 3.28 am you were behind the wheel of a silver commodore wagon with registration plates not matching that car. I am not dealing with you for the use of those plates. One of the car’s headlights was not working and that attracted the attention of police in a marked police car. They activated their flashing lights and their siren to intercept you as you drove along Gibbons Road near Lara. You almost came to a stop. You then performed a U-turn and you were facing the stationary police car. You then drove towards the police car and that vehicle was forced to take evasive action to avert a collision. You continued on your way turning your lights off as you drove away from the scene. The particulars of the dangerous driving while being pursued, Charge 1, are set out in the document. By speeding, driving without headlights on and driving at a police vehicle causing the vehicle to take evasive action after you had been given a direction to stop and while being pursued. So much then for Charge 1, dangerous driving whilst in a pursuit.
8 If we skip forward then to around 12:15am on 1 January, you were again driving that vehicle, this time with different ‘homemade’ or cloned registration plates. You had your girlfriend in the car, a Ms Kayla Hudson. You had no business being behind the wheel of any car as you were not licensed to drive. Your car went through a red light in Sunshine and the police who had been following you activated their lights and siren. You failed to stop. You turned off your lights and accelerated away. The summary then sets out what unfolded. Stop sticks were set up but you avoided them. At one point the Police Air Wing ‘chopper’ was overhead and kept you under surveillance. I say at one point. This was no brief event. In fact it was very much protracted. The Air Wing footage lasts for 100 minutes and that was not the entirety of the driving embraced by Charge 2. Bear in mind, of course, this was just a tick into the New Year, so New Year's Eve if you like, going into the early hours of 1 January, a time where almost every year we have some unlucky family mourning the loss of a family member who did not live to see much of that new year unfold, as a result of some tragedy out on the road. It is just a matter of good fortune that you did not add to those sad statistics on this night. The driving was just ridiculous, including hitting speeds of 180 kilometres per hour in an 80 zone. You were often enough travelling at double the speed applicable to the road that you were driving on. You were veering in and out of traffic at high speed. Driving without headlights and through multiple red lights at speed. Driving on the wrong side of the road and without indication. You endangered the life of your passenger who was pleading with you to stop, as well as many other road users. Many had to take action to avoid you.
9 In fact, Ms Hudson reminded you of the fact that the car had a spare tyre suitable for speeds below 80 kilometres per hour. You knew that fact but you continued driving in this manner.
10 Ms Hudson thought, with some justification actually, that she was going to die.
11 The footage shows the efforts taken by the victim the subject of Charge 3 to stop your vehicle. That was Leading Senior Constable Craig Gibson who was an on-duty member. He was wearing a high visibility vest and he saw you approaching him at high speed in Somerville Road in Sunshine West, it a 60 kilometres per hour zone and you were exceeding 100 kilometres per hour. He intended to deploy stop sticks and was out of his car to do just that. You had your lights off and you drove at high speed towards him. He threw the stop sticks on to the road and basically ran for his life. You braked heavily and swerved in an arc towards him and he leapt to the right and rolled on to the road surface to try to avoid impact and he succeeded. No-one is suggesting you were driving intending to strike him. Of course you were not. I am dealing with reckless exposure and that dangerous manoeuvre was no doubt to try to avoid the stop sticks. Very fortunately, he was not struck by your vehicle. Fortunate for him of course and fortunate for you. The dangerous driving embraced by the conduct endangering life charge then continued as the summary and the footage makes clear. Ultimately some stop sticks were deployed at 2:45 am out on the Melton Highway and they at least had some effect. Though you were clearly having increasing difficulty handling the car, you still continued to drive before abandoning the car and hiding behind a hedge in a garden at the front of a property in Hillside. You and your girlfriend were both arrested. You resisted police briefly and had to be physically restrained. You had a small quantity of drugs with you, ice and speed, hence Charge 4 on the indictment.
12 As I have said, you had no business being behind the wheel of a car on either of these nights. Your licence had been cancelled at the Magistrates Court on 2 June of 2019.
13 You were taken to the police station and an oral fluid test disclosed that you had illegal drugs (methylamphetamine) in your system. You made some admissions in your interview including that you knew that the space saver spare tyre should only be used at speeds of below 80 kilometres per hour (see Questions 52-58).
14 Once the police pressed you as to your involvement in the earlier incident on 30 December, a matter which you disputed, and they then raised with you the finding of the registration plates from that earlier incident within the car and they told you that really it would be better not to lie, you elected then to make predominantly a no comment interview from that point, as was your right.
15 The summary sets out the chronology. You pleaded guilty on what was the day of a contested committal but before the witnesses were called. So it is still a relatively early plea of guilty here. Part of that chronology was your entering bail on 23 September of 2020. Bail had been granted a couple of days earlier. You have plainly done very well on bail and I will return to discuss that in due course. There was a very optimistic summary jurisdiction application which explains the listing dates in the Magistrates' Court in March and April of this year. That application was correctly refused. This case had no business being dealt with in the lower court.
16 So much then for my short summary of the summary. That is all it is. I sentence pursuant to the more detailed agreed statement but with the amendment urged upon me by your counsel as to the highest speed not exceeding 200 kilometres per hour and being around 180 kilometres per hour. Of course, I also sentence pursuant to the footage that shows what words really cannot, the extent of the danger you were creating on this morning.
Impact
17 There are no impact statements placed before me. However, it is plain that this was terrifying driving. As I have said, your passenger who begged you to stop, thought she would die. The leading senior constable no doubt saw his life flash before his eyes as he dived to avoid impact. Other road users would have no doubt had highly alarming moments. Your rate of speed when viewed against those travelling at an appropriate speed was pretty breathtaking. As to the police member, he was placed at risk by you as he was doing his job, one that is difficult enough at the best of times. He was trying to intercept and stop you, a person who was undoubtedly a menace to the general public. That was his clear duty. No doubt it was a frightening moment in the course of that shift, one that he no doubt would have reflected on since. However in the absence of impact statements placed before me, I cannot infer the existence of any lasting or significant impact here.
In Mitigation
18 I turn then to the plea that was conducted.
19 Mr Barreiro conducted the thorough and excellent plea on your behalf. He had prepared a very detailed set of written submissions. He relied upon those as well as a report from Adam Turvey, a senior therapist at Odyssey House. There was also an additional document that spelt out in general terms the extent to which there are restrictions in play upon the freedom of residents at Odyssey House.
20 The written submissions went into detail as to your personal and family background, including detail of your educational and employment history as well as issues you had previously had with illegal drugs. Your counsel made some submissions as to the relative objective gravity of the offending and the matters of sentencing principle that ought be at play here. He focussed on your efforts since being bailed to the Odyssey House program. He made submissions about your prospects of rehabilitation. He conceded that your past criminal history had at least some relevance to my task.
21 Mr Barreiro relied upon the following matters in mitigation;
· Your relatively early guilty plea in the midst of the global pandemic (Worboyes[1]);
[1]Worboyes v The Queen [2021] VSCA 169
· The existence of some admissions to the police and presence of some remorse here;
· The period of time that you had spent in residential rehabilitation and the application of the principles from the Court of Appeal case of Akoka[2];
· The impacts of COVID-19 upon your previous custodial experience as well as the ongoing impact should you be returned to prison, which of course, you have been.
[2]Akoka v The Queen [2017] VSCA 214
22 He conceded that a term of imprisonment was warranted here but he argued in favour of a merciful disposition, one not returning you to prison. He argued that a combination sentence with a prison component equating to your existing pre-sentence detention, and hence leading to immediate release on to a suitably conditioned community correction order, was within range here. Failing that, a combination sentence with more time to serve prior to your ultimate release on to a community correction order and failing that, of course, a head sentence with a non-parole period.
Prosecution
23 Ms Martin who appeared on behalf of the Director of Public Prosecutions had prepared some detailed written submissions which I see no need to set out. She challenged the availability of such an outcome as was mooted by your counsel and she argued on behalf of the Director that a head sentence and non-parole period was the only appropriate disposition here. That was owing to the seriousness of the offending. The prosecution challenged the suggestion of there being the degree of overlap contended in paragraph 27 of your counsel’s written submissions. The conduct the subject of Charge 1 was on a totally different day. The conduct the subject of Charge 3 related to that specific aspect or episode of driving as you approached the police member.
24 The conduct endangering life charge spanned the balance of the driving both before and after that event where you exposed many motorists, as well as your passenger, to the danger of death. The Crown argued that your culpability was high here. You knew that you were significantly affected by drugs and driving a vehicle with no headlights and a space saver tyre and yet you engaged in extraordinarily dangerous driving over a very sizeable period. You were not even licensed to drive. They made submissions as to the relevant purposes of sentencing, the nature and gravity of this offending and the matters in mitigation that existed here. Despite such matters as existed in mitigation, the Director was calling for your return to prison.
25 Ultimately, of course, I am not bound by submissions made by either party as to the appropriate penalty. I have to exercise my own sentencing discretion in this case. I will return in one moment to discuss the various submissions made on your behalf as well as the matters raised by the prosecution. Firstly, though, I turn briefly to your background.
Background
26 I am not going to set out all the details I have learnt about your background. I have no reason not to accept what I have been told about you. I do accept it but I just see no utility in restating it all. Very briefly then, you were born on 10 December 1990 and you turn 31 in a few months. You were 29 at the time of the offending. You are an only child and your parents separated when you were three. You had a relatively normal childhood and passed year 10 at Craigieburn Secondary College. You then did a TAFE course and worked in a variety of areas including at a call centre, an internet café and also a fast food restaurant.
27 You began using illicit drugs in your late teens. You could still function to some degree and I was told that you held down work. That changed in your early 20s when you started to use ice and GHB. You started to lose your way then. I was told of an incident where you were kidnapped over a drug debt when you were about 26 years of age, and after that very traumatic event, your life took a further downward turn and your drug use increased. You lost your job. One intense drug-fuelled intimate relationship that you had been in for a number of years was replaced with another, this time with Ms Hudson. You have not had a job since that period in your mid-20s.
28 You moved to Perth in 2018, looking to alter your life but ran foul of the law over there and spent a period in custody by way of a fine default. You went before the Melbourne Magistrates Court in relation to a large consolidation of matters in June of 2019. I was told that some of those charges, if not most of them, predated the Perth offending and you were admitted to a 12 month community correction order. It was a work only order with no treatment conditions. A licence order was made then. It follows then that you were on that community correction order at the time of the offending I am dealing with.
29 The criminal history is then a pretty limited affair with that Perth appearance in November 2018, the Magistrates Court matter in June 2019 and a further appearance for what must have been a relatively minor theft in December 2019 given the outcome recorded. I am told that there are some matters outstanding. There is, of course, the breach of the community correction order, as well as some other charges, which I was told are likely to be guilty pleas. Those matters are listed in November. They relate to petrol driveaways. I understand that you are likely pleading guilty to them and the offences occurred in a similar time frame. They are of no weight at all to my task and I put them aside altogether.
30 As to the prior criminal history, I want you to understand that of course you do not fall to be sentenced a second time for any of that past offending. You have served the sentences which were imposed and the criminal history does not remove the need for me to pass proportionate sentences here. I have to make judgments as to your prospects of rehabilitation though and the need to deter you and protect the community from you. I cannot just ignore your past history. Within a short space of time of being placed on to a community correction order, you have committed these serious offences. I cannot ignore that fact.
31 There was no sensible basis for you to be driving on either occasion. You had no licence. You chose to drive in the knowledge that you were unlicenced and on a community correction order. The car you were driving had false plates on it and plainly that speaks of some effort to avoid detection on that second occasion. You have previously committed an indictable offence on bail and had ignored an earlier licence suspension. That is plain from the appearance at court in June of 2019. It is a matter of some aggravation that you were on a community correction order at the time of the offending I am dealing with.
32 However, as I say, it is a short criminal history and your efforts since being bailed are impressive. I pay some regard to your criminal history but I must not let it dominate my task. It really does not greatly inform my task given your age, the sparsity of actual appearances, and your efforts since being bailed.
33 Your efforts since being bailed have been very good. You were actually admitted to bail on 23 September 2020 and spent about 11 months at Odyssey House. There is a strong letter from that organisation commending you on your efforts. There were clean urine screens throughout and some level of limitation of movement such as to invoke the Akoka principles. I apply those principles to my task.
34 You left Odyssey only the week before last, but there was nothing sinister about that. You simply had got to the end of it and you are looking for stable accommodation as well as employment. You have been living with your mother and you plainly have family support. That has not always been the case. Like many drug users, I suppose, you have burnt many bridges in the past and I was told by your counsel that, frankly, your family had come very close to giving up on you. That has altered as a result of them seeing your efforts at Odyssey House. I note that your uncle had come down from Echuca to support you on the date of the plea.
35 I take into account your background.
36 There is however nothing at all in your past personal background or your position at the time of the offences which in any way reduces your culpability. No doubt you were under the influence of drugs on the morning of the major offending but drug use is not mitigatory.
37 I turn then to consider the various other matters raised by your counsel.
Guilty plea
38 The first of those matters is your guilty plea. You pleaded guilty to these charges on the day of the contested committal. No witnesses were called. Given the existence of other charges which ultimately did not proceed, I will treat your plea as an early one.
39 Your early guilty plea is of real significance. The community has been saved the time, cost and effort associated with the conduct of a committal hearing or a trial.
40 You have facilitated the course of justice. You have taken this early responsibility for your offending by pleading guilty and you have done that in the midst of the disrupted operations of this court arising from the response to the COVID-19 virus. We have a very large backlog of trials. It is getting bigger each day that normal jury operations are on hold. The trial in your case would have formed part of that ever-growing, if not mountainous, backlog. Your early guilty plea is worthy of significant extra weight in such a setting for the many reasons set out in the decision of Worboyes.[3]
[3]Worboyes v The Queen [2021] VSCA 169
41 Your admissions made in the course of the police interview are not the strongest point in your favour. You made some admissions to the police but as you well know, you were not frank with them at all. It was your right to approach the interview in that way, but there is not much mitigation to be had from your interview with the police. Of course your guilty plea is very different indeed. It is a matter of real weight here.
42 I take these various matters into account in mitigation.
Remorse
43 As to remorse, there was no direct written submission on that score so I asked your counsel whether he was submitting that remorse was present here or not. I had no evidence of that at least in your police interview but I acknowledge the interview was conducted a long time ago. You have since spent a fair amount of time in custody and then, in rehabilitation. You have had ample time both in custody and out of custody to reflect on your conduct and what may have happened, to you and to others. Your counsel said that you had and he had mentioned that in his written submissions. You have pleaded guilty at an early stage and the Odyssey letter speaks of the existence of remorse. I am prepared to accept your counsel’s ultimate submission and to find that there is some remorse here and I take that into account in your favour.
Rehabilitation
44 I turn then to your prospects of rehabilitation. I have already spoken of the relatively limited nature of the criminal history. Only three appearances and you are approaching 31. Sometimes we see people committing this style of offence with horrendous driving histories or a total failure to respond to any court orders or both. That is not the position here. It is true you did not pay much regard to your community correction order but it was not one with any treatment conditions attached. You are not a person who has frittered away countless opportunities extended by the courts.
45 You have taken strong steps in the course of the time you spent at Odyssey House as that letter makes plain. You have transitioned back to the community and have engaged very appropriately for those 11 months whilst on bail. That time has also been the longest time you have been drug free for very many years. So unlike many who appear before the court, you have put in some real and determined effort. I am told that you are committed to not repeating your past mistakes.
46 You have had a long term issue with drugs and your ongoing rehabilitation will depend to some extent upon your abstaining from drug use. You have been on the right track on that score. You have family support. The offending as serious as it turned out to be was not conduct which you had planned. You planned to drive and you should not have. You used the cloned plates after the first incident but no doubt on each occasion you hoped just to drive from A to B and not to engage in any more serious conduct than that. Then, of course, the police observed you. On each occasion you acted in the moment. That is not to downplay the seriousness of what unfolded especially on that second date but rather to point to conduct that had no real level of pre-planning. I recognise of course that conduct such as this, especially the reckless exposure offence, will often be committed in the spur of the moment to avoid apprehension. Sometimes it is to avoid arrest for more serious offending, for instance car theft or armed robbery. The incredible thing about your conduct is the extent to which you escalated the seriousness of the offending. From a charge of unlicensed driving and perhaps use of false plates and perhaps some minor drug offences, it has blossomed into far more serious charges as a result of your conduct. Ultimately, though, I accept your counsel’s submission that you have, as he put it, “real and substantive” prospects of rehabilitation.[4]
[4] Defence Outline of Plea Submission dated 8 September 2021 (Exhibit A) at para [26]
Residential rehabilitation
47 I have mentioned already the report from Mr Turvey from Odyssey House. I take into account that report as well as the document setting out the extent of limitations and restrictions at that institution. Your counsel relies upon the time you have spent in rehabilitation not just in support of the submissions he made as to your prospects of rehabilitation. He relies upon it in a quite separate fashion. It is plain enough that there were some restrictions in place and for a sizeable enough period. Though obviously not in the same position as confinement in a prison, you were certainly not free to come and go as you chose. That is not the nature of placement at Odyssey House. It is actually quite rigorous. I take into account the period of residential rehabilitation in the manner contemplated by that case of Akoka[5] that I mentioned earlier. I accept your counsel’s submissions in that regard.
[5]Akoka v The Queen [2017] VSCA 214
COVID-19
48 Your counsel relied upon the impact of the COVID-19 pandemic upon your custodial experience to date, as well as what would lie ahead if you were to be returned to custody.
49 I accept that the COVID-19 virus and the response to it by those running the prisons increased your prison burden. Prison would have been a more stressful environment in the time that you were held before being bailed in September of last year.
50 Social distancing would not have been easy as the pandemic took hold. No doubt there would have been worry about catching the virus in such a setting, where unlike someone in the community, there really was no level of autonomy for a prisoner. Given your reception date in January 2020, I was told that you were not subject to a quarantine period but plainly there would have been limitations to visiting and courses for a significant portion of that period in custody leading to the grant of bail.
51 As to what lies ahead with the pandemic, it is impossible for me or anyone else really to know. The impacts of the virus upon prisoners had been lessening, with visits and courses getting back underway earlier in this year. We have been experiencing ups and downs as the events of the last few months make very clear. We had the circuit breaker lockdown in February this year and the temporary suspension of prison visits. We have had issues since including further community lockdowns and of course we are currently in a lockdown in Metropolitan Melbourne until at least the end of September. The road map out of the lockdown in the community is none too sure. There is uncertainty as to how things will play out and plainly there will be uncertainty as to how they will play out for prisoners into the future. I have sent you back to prison. You will be experiencing quarantine and no doubt you will have some ongoing anxiety as to how you will fare in the future. In the short term you will face the suspension of in-person visits and some reduction in the full range of courses available. I take those things into account. I really cannot know if limitations in prison will be prolonged or if once lifted, whether they may start up again down the track and of course I cannot speculate about those sorts of things. I take into account the impact of the virus in the ways urged upon me by your counsel. It has not been a good time to be locked up and that looks likely to continue to a degree into the future.
The Offences
52 I turn now to the offences but I resist the temptation to set out all of the facts. The agreed summary together with the footage does that. This was serious offending. Your counsel concedes as much. He described the offending in as very serious.[6] Appalling driving with extreme speed over a few hours.[7]
[6] Defence Outline of Plea Submission dated 8 September 2021 (Exhibit A) at para [13]
[7] Ibid at [16]
53 Plainly the conduct on the second date was far more serious than on the first. On the first occasion there was relatively brief conduct. However, you engaged in dangerous driving to avoid the interception and those police members needed to take action to avoid their vehicle being struck. It was serious enough conduct. The conduct on the second occasion was pretty startling. The conduct endangering life arising from your driving involved multiple examples of real and not imaginary dangerousness. Take your pick: High speed, ignoring traffic control signals, headlights off, veering in and out of other traffic and heading on to the wrong side of the road when you felt like it. Often enough a conduct endangering charge may relate to a single event and a single person being exposed to risk. Not this example. It was protracted driving spanning over two hours. You knew throughout that the police were trying to stop you. Your passenger who thought she would die, was begging you to stop. You knew that you had a car with no headlights turned on. You knew that you were affected by drugs. You knew there was a space saver tyre rated only to a maximum of 80 kilometres per hour and you were travelling on occasions at 180 kilometres per hour. Mr Barreiro submits that that was not a matter of any weight at all in my task, there being, he says, some inability to take judicial notice of some increased risk of blow out or accident in such a setting as that. I reject that argument to this degree. You knew you had the space saver tyre on the car. You knew it was rated to a maximum of 80 kilometres per hour. You were also being told that fact by your passenger as she begged you to stop. These were surely further reasons for you to sensibly reflect on the way you were driving and to desist, but of course you did not.
54 You were on a community correction order at the time and you were unlicensed. Multiple road users as well as your passenger were placed in danger of death. It was, as I have said, on what would be described as New Year’s Eve, commencing just after midnight actually into 1 January.
55 Large amounts of police resources were tied up here.
56 I believe that this was a serious example of conduct endangering life. There is no reduction in culpability at all for this or any of the other offences before me. There is not much value in trying to find worse examples of conduct. This was serious enough.
57 The conduct in relation to Charge 3 relates to an on-duty police member trying to protect the public from you. Trying to stop you. He was out of his vehicle and he was unprotected and exposed in that setting. You drove and tried to avoid the stop sticks. In doing this you swung around and came very close to striking him. As I said earlier, I accept of course that you were not endeavouring to hit him. If you were, there would be quite different charges before me.
58 The fact remains though that you recklessly exposed that on-duty member to a risk to his safety. That is an inherently serious offence. He had to take urgent action to avoid serious impact and he was actually very lucky not to be struck. It was no minor example of that offence at all. Far from it.
59 The conduct on both nights arose in the moment. Out of panic and the hope to avoid arrest or interception.
60 That is almost the invariable setting for the reckless exposure offence and a common enough setting for the other offences. It is not mitigatory. It is not mitigatory that your judgement was adversely affected by drugs. Not at all. It is another factor adding to the risks posed by your driving on that second date.
61 Police have a difficult and dangerous job, one which exposes them to enough risks and dangers without the additional risk or danger posed by criminals or motorists running the gauntlet and defying requests to stop.
62 I will scarcely even mention the possession of drug charge. It pales into insignificance here in terms of seriousness. So for that matter do the various other summary matters.
Purposes
63 I turn then to the purposes of sentencing and some of the matters I must have regard to. I am required to consider a number of matters including the nature and gravity of the offending, the impact of the crimes and for that matter the maximum penalties.
64 I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose. Now I do not ignore this purpose. I have already indicated my conclusions. If sentencing was all about you and your rehabilitation, it would be a far easier exercise in this sort of case. Not too many people would be sent to prison if rehabilitation was the only purpose to consider, especially in the setting of someone who has taken real and positive steps as you have. Of course, one does not take lightly a step that may impact upon this ongoing process of rehabilitation, but sentencing is far more complex than looking purely at you and what is best for you. Of course, sending you back to prison has a deleterious effect upon you. But there are many other purposes of sentencing at play, including specific and general deterrence, protection of the community, denunciation and punishment.
65 You must be punished justly and proportionately. Punishment is obviously of importance in this case.
66 I must also denounce your conduct. Again that is important. It was outrageous conduct actually, especially on that second date and it must be roundly denounced.
67 Then there is deterrence, both general and specific. I must seek to deter you from offending in the future. That principle of specific deterrence is of some importance here despite the steps you have taken at Odyssey House. No doubt it would be given more weight if you had a highly relevant or lengthy criminal history or you had breached large numbers of court orders. Or for that matter if you had mucked around whilst on bail. But that is not the position. You were on a court order at the time of the offending but you have done very well since being bailed, so I believe there can be some moderation of specific deterrence in this case.
68 General deterrence is however an important purpose of sentencing here and that much is conceded. That relates to the need to deter other offenders. This court must send a loud message to other individuals in the community who might be minded to commit this style of serious offence. It is completely unacceptable to expose a police member to this risk to safety. That is what Parliament said when they saw fit to introduce these emergency service worker exposure offences in 2017 (see the Second Reading Speech on 2 Nov 2017).
69 It was completely unacceptable to drive your car in such a way as to endanger the lives of other innocent road users. Others must understand how serious this style of offence is. Others must be convinced of the need to stop when police seek to intercept a vehicle. Conduct such as yours simply will not be tolerated by the courts. A very loud message must be sent to those who may consider engaging in the sort of conduct that you engaged in. General deterrence is an important sentencing purpose in this case.
70 Community protection is also of some importance here. You exposed countless other road users to danger on this night. Also, the member was placed at risk. I believe I can moderate the weight given to community protection given the steps you have taken at Odyssey House and my findings as to your prospects of rehabilitation and the presence of remorse. Still, it is undoubtedly of some weight given the nature of these crimes and your preparedness to commit them whilst on a CCO and whilst unlicenced.
71 I must pay regard to current sentencing practices. That is not a single controlling factor. It is just one of the many matters that the court must have regard to.
72 The reckless exposure offence is still a relatively new offence. There is no relevant Sentencing Advisory Council snapshot though there are statistics on held in the Sentencing Advisory Council online data. I have looked at those. I have looked at the relevant portions of the Judicial College of Victoria (JCV) Sentencing Manual (at 2.5.1 and 2.5.2) and the various cases listed in those sections.
73 I have also looked at the Sentencing Advisory Council online data in relation to conduct endangering life, as well as the cases set out in the relevant section of the JCV Sentencing Manual at 5.5.1, 5.5.1.2 and 5.5.2. I note from the statistics that the most common sentence imposed in 173 sentencing outcomes in the period from 1 July 2015 to 30 June 2020 fell in the range of three to less than four years.
74 I have read the many cases to which I was referred by the prosecutor. She acknowledged that each case turns on its own facts. None of the cases cited were on all fours and many were merely examples of other judges exercising their discretion in relation to other people charged with other crimes. Many where the decisions of single judges of this Court.
75 I must pass an appropriate sentence in relation to your crimes. I am exercising a sentencing discretion in relation your case, not theirs. There is no such thing as one correct sentence. None of these other cases stand as some form of precedent. They are not precedents. Having read the cases, there are differences in conduct and in personal background and in criminal history. All the matters in mitigation and aggravation, which would explain the sentence, vary as between the cases.
76 Those sorts of things are not even disclosed in the statistics. For this and many other reasons, statistics have just inherent limitations. I am not sentencing you as a statistician. I am not to focus on some statistical measure such as the most common or average or median sentence and then treat that as some starting point. There really is no starting point for me.
77 What I have to do is deal with you for your crimes taking into account the matters in mitigation and aggravation in this case. So the statistics provide no answer to my task.
78 I was not assisted greatly by going to those other cases, no more than I was by being referred by your counsel to a couple of other cases which were said to be worse than yours.
79 Let me say this though. I do accept that maybe I provoked that submission from Mr Barreiro by saying that I really could not find a worse example of this style of offending. However, it is a pretty faint submission to argue that your conduct endangering life offence is not as serious as some disclosed in the case of Gargasoulas.[8] Where does that get you or me, for that matter?
[8]The Queen v Gargasoulas [2019] VSC 87
80 As I made apparent earlier in these reasons, this instance of conduct endangering life must rank as a serious example of the offence. I do not accept your counsel’s oral submission that it fell towards the mid-level. It does not. It was, as your counsel had suggested in the written submissions, appalling driving by a heavily drug-affected driver involving extreme speed over a few hours, presenting real danger to the safety of other road users whilst you were both unlicenced and on a community correction order. All of it to avoid apprehension by the police.
Totality
81 I take into account the principle of totality of sentence. I do not accept that there is the overlap spoken of in paragraph 27 of your counsel’s written submissions. Charge 1 is after all on a separate day, albeit the day before the conduct the subject of the remaining charges. So there is no overlap in relation to Charge 1. The conduct the subject of Charges 2 and 3 is broken down. It is true that there is the temporal connection and that in my judgment must give rise to a claim for a decent level of concurrency. I do not ignore the tight time frame and the relationship between those two offences. Charge 3 is after all surrounded on both sides by the driving the subject of Charge 1. The conduct the subject of Charge 3 is severed out owing to the status of that particular victim. Had it been a civilian, for instance, crossing the road at that point, it would not have been separated out in that way, but no doubt would have added to the seriousness of the conduct endangering death charge.
82 His status as an on-duty member is however a matter of significance. It is a separate serious offence owing to his status. In fact the presumption of concurrency is displaced in relation to that sentence (see s.16(1A)(i) and s.16(3D) of the Sentencing Act 1991). Those provisions do not oust the principle of totality of course. Totality is important here given the relationship between the offending on one day, and the fact that the earlier offending the subject of Charge 1 really was not that far removed from that day.
83 I have engaged in a last look at the sentences imposed by the court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you and to ensure that the overall effect is commensurate with your overall criminality.
84 Prison is always a disposition of last resort. Your counsel concedes that I must impose a term of imprisonment.
85 He argued that a suitably conditioned community corrections order in combination with the 267 days you had to that point served would achieve all the purposes of sentencing.
86 The Director of Public Prosecutions challenged the availability of such an outcome and was calling for a head sentence with a non-parole period.
87 These were the submissions made by each of the parties. As I said earlier, I am not bound by the sentencing submissions made by either your counsel or by the prosecution. I must exercise my own sentencing discretion in this case.
88 Mr Barreiro referred to the case of Boulton & Ors v The Queen [2014] VSCA 342 (“Boulton”).
89 The Court of Appeal spoke in that decision of the dramatic change in the sentencing landscape brought about by the availability of a community correction order, either on its own or as was possible at the time of that decision, such an order in combination with a prison term of up to two years.
90 The Court of Appeal has said on later occasions that the community correction order disposition is not some ‘get out of gaol free card’ to be employed for every crime before every court and for every offender.
91 That decision of Boulton undoubtedly counselled and for that matter challenged judges to reconsider and to revisit our conventional wisdom as to when it is appropriate and necessary to actually send an individual to gaol. The Court of Appeal stated that the sentencing landscape had changed dramatically by reason of that style of disposition. They indicated that sometimes it will be open to place a person on such an order even for offending that previously might have been visited with a substantial or medium term of imprisonment.
92 The precondition to such an outcome was if it was appropriate in the particular circumstances of a particular case.
93 It is obvious that not every offender for every crime can or should be admitted to such an order. There are some crimes where the purposes of sentencing cannot be given adequate weight by use of such an order.
94 So in this case, as in so many cases that come before this court, there are some obvious tensions that exist as between the various purposes of sentencing. That is why sentencing is not actually that easy. Though you are not a first time offender, you have a very modest history before the courts with some impressive material placed before me as to your efforts on bail at Odyssey House.
95 Being admitted to bail back in September of 2020 did not stand as some guarantee that you would not be returned to prison in due course. For, of course, however you performed on bail, at the end of the day a court was going to have to deal with you for these offences and pass appropriate sentences.
96 As a matter of law, if a suitably conditioned community correction order in combination with your existing pre-sentence detention would achieve all the needs of sentencing in this case, then I would proceed in such a way. That is because a court must not pass a sentence that is more severe than is necessary to achieve the purposes of sentencing in the given case.
97 You have done very well on bail. I accept that you have made genuine and productive efforts. That is obvious from the materials.
98 I have returned you to prison. I do not want you to sense that your efforts have been for nought. They have not been and undoubtedly they must produce a lesser sentence than otherwise would have been the case.
99 I recognise that rehabilitation is important here. It is important for you but not just for you, as a rehabilitated offender is no future risk to the community at all. However, as I have said, sentencing is not all about your rehabilitation. I must give appropriate weight to other purposes of sentencing.
100 Despite your impressive efforts, I must also give weight to deterrence, punishment, denunciation and community protection.
101 It is conceded by your counsel that a stand alone community correction order would not be open or appropriate for offending as serious as this. He is right, of course.
102 Having reviewed all the materials, I do not believe that it is open to me to impose a combination type sentence with a prison term equating to your existing pre-sentence detention. Such an outcome would not in my judgment achieve the various purposes of sentencing in this case including punishment, community protection and especially deterrence.
103 Nor do I believe that in the circumstances a combination type sentence with further time to serve is open to me. I do not believe such an outcome would achieve the various purposes of sentencing for the same reasons I advanced a moment ago.
104 I believe that I must pass individual sentences such that a community correction order is not even as a matter of theory open. I must fix a non-parole period. Each individual sentence, the head sentence and the non-parole period, will pay regard to your efforts in residential rehabilitation. Make no mistake, it was still time well spent for you and translates into a lesser sentence for you. Now I am not by the way saying you were doing it to obtain a benefit at court, but you are going to get one. The greater benefit for you is to work on the things you have learnt upon your ultimate release from prison. A release that will be far less distant than had you not gone to Odyssey House and done so well and had you not come to court with a guilty plea in these COVID-19 times.
105 Mr Barreiro submitted quite candidly that absent your residential rehabilitation and the Akoka submission, and absent the impact of the COVID-19 pandemic upon the worth of your guilty plea and the Worboyes type submission, he could never have made the submission urging your immediate release. He relied upon those matters in particular, and the other matters in mitigation more generally, in support of such a disposition being available. I am against him on that principal disposition being available or even one involving a combination sentence with further time to serve, but I still give those matters real and tangible weight here.
106 Given the dimensions of the head sentence I will be required as a matter of law to fix a non-parole period. The Adult Parole Board will have the capacity to consider releasing you at some point before the lapse of your head sentence.
107 I must work on the understanding that you will serve every day of the head sentence which I will soon pronounce. But I will make provision for the possibility of your earlier release on parole and fix a non-parole period of a dimension to further recognise your efforts to date. I must not speculate about whether or not you will be paroled. That will be entirely in the hands of the Adult Parole Board.
108 There are some ancillary orders. In fact, there is only one, I believe. There is a disposal order sought and which is consented to. I will attach an electronic signature to that order. It is sought under s.78 of the Confiscations Act 1997 relating to the drugs the subject of Charge 4. There is consent to the making of that order and I order the forfeiture to the State of the property referred to in the schedule and I direct that it be handled in the matter contemplated by the order which I have signed. As I say, that is made pursuant to s78 of the Confiscations Act.
109 Ms Martin, the forfeiture order was ultimately not pressed, was it?
110 MS MARTIN: That's correct, Your Honour, it's not pressed.
111 HIS HONOUR: An application to forfeit the vehicle that you were driving in had been foreshadowed. I spell out that in the absence of notice being given to the owner of the car (your father) that I would not be proceeding with such an order as that and it has not been persisted with.
Sentence
112 I will now move then to pass sentence. I am sorry I have taken so long to get to this point. I would normally get you to stand up but I will not, we are doing this online so I will have you just remain seated.
113 Charge 1 is the charge of dangerous driving in a police pursuit in the first incident on 30 December. On that charge, you are convicted and sentenced to nine months’ imprisonment.
114 On Charge 2, that is the conduct endangering life, you are convicted and sentenced to two and a half years' imprisonment. That will be the base sentence.
115 On Charge 3, the charge of reckless exposure of a police officer to risk by driving, you are convicted and sentenced to two years imprisonment.
116 On Charge 4, possession of drugs, you are convicted and fined $500.
Related summary offences
117 As to the summary charges, on Charge 1 of unlicenced driving, you are convicted and sentenced to two days' imprisonment. Likewise, on the offence of fail to stop you are convicted and sentenced to two days' imprisonment. On exceeding the prescribed concentration of drug, you are convicted and fined $750. On the charge of fraudulent use of an identifying number you are convicted and sentenced to two days' imprisonment. Finally on the charge of resist police you are convicted and sentenced to two days' imprisonment.
Cumulation
118 The base sentence is therefore the two and half years that I have imposed on Charge 2, which is the conduct endangering life. I make the following orders for cumulation.
119 I direct that:
· Four months of the sentences imposed on Charge 1 (dangerous driving in police pursuit) and
· Six months of the sentence imposed on Charge 3 (reckless exposure of a member to risk)
is to be served cumulatively upon the base sentence and upon each other.
120 I am ordering then a sizeable amount of concurrency in relation to the sentence imposed on the reckless exposure offence. I am to this extent otherwise directing concurrency under s16(3D).
121 In further recognition of totality of sentence, the sentences imposed on the various summary offences will be served concurrently with each other and with all other sentences imposed today.
Total Effective Sentence
122 These orders produce a total effective sentence of three years and four months, or 40 months' imprisonment.
Non-parole period
123 I fix a period of 19 months during which you will not be eligible for release on parole.
Section 18
124 You have been in custody already for a period of 273 days and that period is declared as having already been served under this sentence. You get credit for that.
Section 6AAA
125 I have told you that I have taken into account your guilty plea. Had you pleaded not guilty and been found guilty of these offences by a jury, I would have convicted and sentenced you to five years and ten months' imprisonment. I would have fixed a non‑parole period of four years in that setting. That s.6AAA declaration is to be noted in the records of the court.
Licence order
126 I turn then to the licence orders that I must make here. The charge of reckless exposure of the police member to risk is classed as a ‘serious motor vehicle offence’. You are going back to prison for a substantial enough period. Whenever you are released, and I do not know when you will be, you will need to try to establish yourself back in the community. Hopefully, you will get back into the workforce. A driver’s licence would no doubt be of some use in your ongoing rehabilitation as of course it can be a useful thing to have in the job market. There is something of a tension between your rehabilitation on the one hand and both punishing you and protecting the community from you on the other. You are receiving sizeable enough punishment by virtue of the prison sentences that I have pronounced. A licence order is both punitive but also protective.
127 However, given the nature of the driving in this case, I believe that this licence order must have a tangible effect upon you, and the only way it can is if it is fixed by way of some future defined event. Otherwise, you would potentially serve the whole disqualification period whilst in prison and it would have no actual or practical impact upon you at all. So I model the form of my order on that form discussed in cases such as R v Tran[9] and Caldwell[10].
[9] [2002] VSCA 52; 4 VR 457
[10]R v Caldwell [2004] VSCA 40; 8 VR 1
128 On Charge 3, I disqualify you from obtaining any licence or permit and from driving in this State. That order will commence today. You are disqualified from obtaining another licence or any permit or from driving in this State effective from today’s date and ending nine months after you are first released from custody, whether on parole or upon the expiry of the sentence. What that means is that you will be disqualified from driving upon your release from prison and that will be for a nine-month period following on from your release.
129 Thereafter, of course, to be able to drive, you would need to obtain a licence to drive a vehicle by doing whatever VicRoads requires you to do. That may well involve the need for you to make application back to the Magistrates Court.
130 There is also a requirement to make a licence order in relation to Charge 1, that is the dangerous driving in a police pursuit. That matter carries a 12- month mandatory minimum period. On that charge, you are disqualified from obtaining any licence or permit and from driving in this State for a period of 12 months commencing from today.
131 There is also a requirement to make a licence order in relation to the summary offence of exceeding the prescribed concentration of drug. On that charge, you are disqualified from obtaining any licence or permit and from driving in this State for a period of 12 months, again commencing from today. That is the minimum period given the existence of the prior matter.
132 I have considered whether I should also make a licence order in relation to the conduct endangering life charge. That has no mandatory period and would require me to act pursuant to the provisions of s89A of the Sentencing Act. Let me make it very clear, undoubtedly, I would have made such an order had there not been the mandatory order that I have made on Charge 3. In the circumstances, I do not believe there is any utility in making such an order in light of the other licence orders I have already pronounced, particularly the order made on Charge 3.
133 Are there any other matters? Ms Martin, any matters from the prosecution perspective?
134 MS MARTIN: There is just one matter, Your Honour, and it was noted in the summary of prosecution opening that the Crown were not seeking what is essentially a discretionary finding relating to Charge 3 under s89C of the Sentencing Act.
135 HIS HONOUR: I have not made one though, have I?
136 MS MARTIN: Your Honour has not made one and that was not sought by the prosecution in the written submissions, although based on Your Honour's finding today and the concessions of the defendant that he was under the influence of drugs at the time of Charge 3 occurring and also that that contributed to his offending, in my submission it is now open to Your Honour to make a finding under s89C. It is a matter for Your Honour's discretion though.
137 HIS HONOUR: Where is it referred to in your written opening?
138 MS MARTIN: In the written opening it's at paragraph 39, and the wording of s89C(1) is the court may make a finding that the offence was committed while the offender was under the influence of a drug or alcohol which contributed to the offence. The reason why the Crown did not seek that originally was that the contribution to the offence in our view was not made out on the basis of the evidence that was then before the court, but given the defendant did concede that it contributed to the offence and Your Honour has found as much, in my submission that finding is now open.
139 HIS HONOUR: What are the ramifications of making it exactly? Can you tell me.
140 MS MARTIN: I believe the ramifications are that the particulars of such an order must be sent to the Secretary to the Department of Transport and that may then have some further effect on Mr Ennis' ability to get his licence once again. I am not sure exactly what those requirements are but it may involve as I understand it alcohol interlock machines or things would be imposed if alcohol were one of those issues. Of course, here it is not, it is a drug, so whether or not there is any effect it is really just a notice being sent to the Secretary to the Department of Transport.
141 HIS HONOUR: He is already going to be subject to a need to apply to a court to be re-licensed anyway, is he not? He has been convicted of a second offence of exceed the prescribed concentration of drug, has he not?
142 MS MARTIN: Yes. As I understand it, that will be a requirement as well.
143 HIS HONOUR: I think it is achieving nothing, really. Let me just look at the legislation, just bear with me. I suspect it will not really make a jot of difference because the order I made in terms of the exceed the prescribed concentration of drug offence relates to a second or subsequent conviction. I think he is already going to be bound in this day and age to go back to a court to be re-licensed and no doubt he will need to be doing all sorts of things to ever get his licence back. I hope he does, by the way, but he is going to have to satisfy VicRoads and a court, but I do not really see that there is any further ramification but that does not answer the question as to whether I should make the order. Let me just look at the terms of the legislation.
144 I may make a finding that the offence was committed while the offender was under the influence of alcohol or a drug or both alcohol and a drug which contributed to the offence. Is there any doubt about that? It seems to have been conceded in the written submissions and in the conduct of the plea. He was heavily drug-affected which severely impacted his decision making as set out in paragraph 9 of the written submissions. Ms Anderson, is there anything you wish to say in relation to this at all, or not?
145 MS ANDERSON: I appreciate it's a matter for Your Honour and it is clear from the orders that he will be disqualified from driving. I would have to say that it's probably a moot point in circumstances where he will have to apply to VicRoads to have his licence back and given the weight given to his prospects of rehabilitation and the use of him obtaining his licence in the future and that it is a discretionary finding as well, I would ask Your Honour not to make that finding.
146 HIS HONOUR: Yes, all right. I think in the circumstances I see no utility in making it. He will be heading back to VicRoads, I think, and before he heads to VicRoads he will be heading to a court to once again be re-licensed and I do not believe there is any serious ramification arising from either the making of or the abstaining from making the order. In the circumstances I will not make the order under that provision.
147 Anything else then from you, Ms Martin, or not?
148 MS MARTIN: Nothing further, Your Honour.
149 HIS HONOUR: And from you, Ms Anderson?
150 MS ANDERSON: Nothing further, Your Honour.
151 HIS HONOUR: All right. It has taken a long time and I am sorry I have taken so long to get to the end point. You will no doubt have a detailed conference with your client and explain the ramifications. He is probably sitting there trying to do the numbers again and it is not easy to follow these things sometimes, but he will understand that I have passed a total effective sentence of 40 months, three years and four months. I have imposed a non-parole period less than half of the actual head sentence so it is a 19-month term and he already gets the credit for the time that he has served in custody which is 273 days.
152 We have probably got the link for a little bit longer today. Are you wanting to stay online and have a - I am not saying you would do it all now, you need to talk about what has happened and talk about his rights in relation to the sentence and those sorts of things and that will need to be done, I think, in a more private sort of setting. Are you wanting to use the link today just for a bit of a debrief with him, or not?
153 MS ANDERSON: Your Honour, if I may have just a brief moment to speak with Mr Ennis that would be appreciated.
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