Director of Public Prosecutions v Fraser
[2022] VCC 1670
•26 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-02352
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CALEB JOEL FRASER |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 4 July 2022 | |
DATE OF SENTENCE: | 26 September | |
CASE MAY BE CITED AS: | DPP v Fraser | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1670 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – two charges of contravention of Family Violence Intervention Order intending to cause mental harm – one charge of intentionally exposing an emergency worker to risk by driving – one charge of conduct endangering life – one charge of possession of a drug of dependence – pleas of guilty – uplifted summary matters – one charge of resisting an emergency worker on duty – one charge of intentionally causing risk to an emergency worker on duty, and reckless conduct endangering life whilst on bail – pleas of guilty
Legislation Cited: Sentencing Act 1991 (Vic), s3(1), s87P(ba), s89(2)(b); Family Violence Protection Act 2008, s123A(2); Crimes Act 1958, s22, s317AC(1); Drugs Poisons and Controlled Substances Act 1981, s73; Summary Offences Act 1966, s51(2); Bail Act 1977, s30B.
Cases Cited:Worboyes v R [2021] VSC 169; Phillips v The Queen [2012] VSCA 140; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Bugmy v R (203) 249 CLR 571; Jaeger v R [2020] VSCA 116; Smith v R [2022] VSCA 148; Hutchinson v R [2021] VSCA 235; Zarghami v R [2020] VSCA 74
Sentence: Total effective sentence of four years imprisonment with a non-parole period of 2 years 8 months imprisonment; 471 days of presentence detention reckoned as time already served under this sentence; fine; 6AAA declaration- six years immediate imprisonment with a non-parole period of four years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z Petric | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr J Swiney | Adrian Paull Lawyers |
HIS HONOUR:
1Caleb Joel Fraser, on 4 July 2022, you pleaded guilty to the following charges on Indictment M11002628.
2Charge 1 -
that you, at Ballarat in Victoria on 14 May 2021, having been served with a Family Violence Intervention Order, contravened that order, intending to cause mental harm to the protected person. Particulars; (a), the
Family Violence Intervention Order was issued at the Ballarat Magistrates' Court on 23 February 2021 (b), the order was served on you by
Leading Senior Constable Gregory Ryan on 2 March 2021 (c), the protected person under the order was Lilly Beaumont[1] (d) the conduct contravening the order was for sending SMS messages to Ms Beaumont, wherein you threatened to kill yourself. Such offence is contrary to s123A(2) of the Family Violence Protection Act [2008] and carries a maximum penalty of five years' imprisonment.
[1] A pseudonym.
3Charge 2 - that you, at Alphington in Victoria on 14 May 2021, without lawful excuse drove a motor vehicle in the vicinity of Senior Constable Mitchell Kohn and Constable Matthew Spencer, emergency workers on duty, knowing or being reckless as to whether Senor Constable Kohn and Constable Spencer were emergency workers and intending to expose Senior Constable Kohn and Constable Spencer to a risk to safety.
Intentionally exposing an emergency worker to risk by driving is contrary to s317AC(1) of the Crimes Act [1958] and carries a maximum penalty of 20 years' imprisonment.
Section 87P(ba) of the Sentencing Act [1991] defines 'serious motor vehicle offence' to mean, amongst other things, an offence under s317AC of the
Crimes Act
. Section 89(1) of the Sentencing Act [1991] provides that, if a person is found guilty or convicted of a 'serious motor vehicle offence', the Court must, in circumstances where a serious motor vehicle offence is contrary to s317(AC) of the Crimes Act, cancel the licence or permit of the offender for no less than
24 months.[2]
[2]See s89(1) and s89(2)(b) of the Sentencing Act 1991
4Charge 3 -
that you, at Ballarat in Victoria on 14 May 2021, having been served with a Family Violence Intervention Order, contravened that order, intending to cause mental harm to the protected person. Particulars(a), the Family Violence Intervention Order was issued at the Ballarat Magistrates' Court on
23 February 2021 (b), the order was served on you by
Leading Senior Constable Gregory Ryan on 2 March 2021 (c), the protected person under the order was Lilly Beaumont (d), the conduct contravening the order was the sending of 14 abusive SMS messages to Ms Beaumont.
Such offence is contrary to s123A(2) of the Family Violence Protection Act [2008] and carries a maximum period of five years' imprisonment.
5Charge 4 -
that you, at Nintingbool and diverse other places in Victoria, on
14 May 2021, without lawful excuse, recklessly engaged in conduct, namely, deliberately driving on the wrong side of the road, that placed or may have placed persons in danger of death.
Such offence is contrary to s22 of the Crimes Act and carries a maximum period of 10 years' imprisonment.
6Charge 5 - that you, at Sebastopol in Victoria on 14 May 2021, without lawful excuse, possessed a drug of dependence, namely Alprazolam. Such offence is contrary to s73 of the Drugs Poisons and Controlled Substances Act [1981] and carries a maximum penalty of five years' imprisonment.
7Two summary charges were transferred to this court pursuant to s145 of the Criminal Procedure Act [2009]. On 4 July 2022, you agreed to have these matters heard before this court and pleaded guilty to these uplifted charges.
8Charge 14
- that you, at Sebastopol in Victoria on 14 May 2021, did resist
Senior Constable Alexei Anikeev, an emergency worker on duty. Such offence is contrary to s51(2) of the Summary Offences Act [1966] and carries a maximum penalty of six months' imprisonment or 60 penalty units.
9Charge 17 - that you, at Ballarat in Victoria on 14 May 2021, did commit an indictable offence; intentionally causing risk to emergency services workers on duty and reckless conduct endangering life, while on bail. Such offence is contrary to s30B of the Bail Act [1977] and carries a maximum penalty of three months' imprisonment.
The circumstances of the offending
10Counsel for the prosecution tendered a document headed 'Summary of Prosecution Opening Upon Plea' dated 22 February 2022 (Exhibit 1) and I was informed by your counsel that you agree with the contents of such document. In particular, I note the following:
· You are presently 32 years old, having been born in March 1990. At the time of the offending you were 31 years old.
· The offending concerned a series of events occurring from between approximately 2.00 am to 10.00 am on 14 May 2021.
· Leading up to that date, you had been in a relationship with your former partner Ms Lilly Beaumont for approximately three years. You have a son from that relationship who is aged three-and-a-half.
· On 23 February 2021, the Magistrates' Court at Ballarat made a final Intervention Order which prevented you from committing family violence against Ms Beaumont.
· On 13 May 2021, around midday, you had lunch with Ms Beaumont and your son and at such time, you appeared to be 'drug affected'.
· At approximately 11.30 pm on 13 May 2021, you were intercepted by police officers in Sebastopol when sitting stationary in your 2008 Nissan Navara utility. At that time, police observed a knife in the driver's door and commenced to search the vehicle and located an imitation firearm, a small amount of cannabis and a small amount of methylamphetamine, an ice pipe and a flick knife.
· At that time, the police described you as being 'agitated and verbally abusive' and you were conveyed to the Ballarat police station, where you were interviewed, charged and bailed. The offences arising from that interception do not form part of this matter and were listed before the Magistrates' Court on 25 February 2022.
· During your period at the police station, you stated on several occasions, that you wished to hurt yourself and police members. You were ultimately released from the police station at about 2.05 am on 14 May 2021.
Charge 1 - Contravention of order, intending to cause harm or fear for safety
· At 2.29 am, you commenced sending text messages to Ms Beaumont.
Such messages included:
- “I’m killing myself tonight”
-“I’m going to kill some cops”
-“If I ever needed help it would be now”
And when there was no response, stated:
-“Thought just as much. Enjoy your life coz I’m out”.
· Ms Beaumont was working night shift when she noticed you were sending her text messages and noted that this is something you had done many times in the past. She noted:
'Generally, when he wants to make me feel bad, he usually says it's my fault when he does it.'
· Ms Beaumont reported the text messages and police attended your home address to conduct a welfare check at 3.33 am. You were not initially present when police arrived. However, shortly after, you entered the driveway in the Nissan Navara. At that time, you were shouting at police to leave you alone and police determined that you were not a threat to anyone at that stage and left the address.
Charge 2 – Intentionally exposing emergency workers to risk by driving
· At approximately 4.24 am, Senior Constable Kohn and Constable Spencer were patrolling the neighbourhood suburb of Alfredton and were driving a fully marked divisional patrol wagon with markings reflective to light to increase the awareness of the police. The blue and red lights were not activated at this time.
· The police were travelling east on Cuthberts Road when they observed the headlights of a vehicle travelling west. As the vehicle approached them, it switched off its headlights and veered across the dividing line onto the wrong side of the road and into the path of the police vehicle.
· The police radar determined the rate of speed to be 80 kilometres per hour as you headed straight towards the police vehicle in an apparent attempt to ram it. The driver Senior Constable Kohn, was forced to take evasive action to prevent a head-on collision. This consisted of veering left and off the road into parking bays adjacent to Cuthberts Road which, as a result, narrowly missed a collision.
· After the vehicle passed, it continued driving on the wrong side of the road with its headlights switched off, before navigating a roundabout and disappearing out of sight. Police were able to make out the registration number, being the Nissan Navara registered to you.
·
At the time of the incident, Constable Spencer feared for his safety as your vehicle headed towards the police vehicle at a fast rate of speed and
Senior Constable Kohn feared for his life and safety if your vehicle hit them at that speed, in the type of vehicle you were driving and with the police situated inside.
Charge 3 – Contravention order, intending to cause harm or fear for safety
·Between 8.40 am and 8.55 am, you sent a further series of text messages to Ms Beaumont in contravention of the Intervention Order. In such messages, you referred to her as 'useless', called her derogatory names, threatened that you would kill yourself and accused Ms Beaumont of not offering you any help at all.
·Ms Beaumont states that you have never been physically abusive to her but that throughout your relationship with her, you have been emotionally abusive, like in the text messages that you were sending. She states:
“He knows they get to me and get me so upset. Basically, he was doing his usual emotional blackmail trying to make me feel as bad as he does”.
·At about 9.30 am, Ms Beaumont attended the Ballarat police station, seeking advice as to what to do about your declining mental health.
Charge 4 – Conduct endangering life
·On police receiving information that you were near Haddon, which is approximately 12 kilometres west of Ballarat, efforts were made to intercept you. At approximately 9.10 am, police observed you travelling in the Nissan Navara at a very fast rate of speed along the Glenelg Highway. Police pursued you in the vehicle at a speed of around 150 kilometres per hour but were unable to catch up.
·As you travelled along Glenelg Highway, you crossed onto the wrong side of the road over double white lines and drove directly at three vehicles in the opposite direction. The three vehicles took evasive action to avoid collision and moved off the road.
·You then changed back to the correct side of the road with police maintaining a distance between you, but not activating any lights or sirens, as it was not desirable to engage in any more dangerous driving.
·You continued driving before, again, crossing the double lines near Finch's Road intersection and driving into oncoming traffic. Another two vehicles travelling in the opposite direction had to take late evasive action to avoid collision. After the vehicles passed, you returned to the correct side of the road.
·You were observed to overtake a vehicle over double lines at the intersection with Bells Road and between Bells Road and Masada Boulevard. You, again, crossed to the wrong side of the road towards oncoming traffic, with another car having to take evasive action to avoid a collision.
·You maintained a high speed until police eventually lost sight of the vehicle at Delacombe Town Centre shops.
·Police were ultimately informed of observations of your Nissan Navara at around 9.45 am on Hertford Street. The witness stated that your vehicle swerved onto the wrong side of the road, forcing a white van off the road and narrowly avoiding a collision. The witness described hearing you state, 'Get out of the fucking road you dogs,' and that you appeared to be laughing as you said this.
·At approximately 9.50 am, police attended 6 Domain Gardens, Sebastopol, after receiving various reports that your Nissan Navara had been sighted at that address. When the police arrived, you were swearing at them and when asked by Detective Senior Sergeant Paul Allen to surrender, you locked the door and police forced entry, after which you did not comply with a direction to get onto the ground and moved towards police in an aggressive manner and was tackled. Several police members attempted to secure you.
Summary Charge 14 ꟷ Resist arrest
·During that struggle, you grabbed the arm of Senior Constable Anikeev and pulled it under his body, holding it under his torso. Detective Senior Sergeant Allen was forced to strike you at this point so that you would release Senior Constable Anikeev’s arm.
Charge 5 – Possess drug of dependence
·Police located a press-sealed plastic bag containing thirteen Xanax tablets in your pocket upon arrest; (ie. the Alprazolan).
Summary Charge 17 – Commit indictable offence on bail
·At the time of the offences you were on bail, which had been granted to you at 2.00 am that morning.
Record of interview
11After being arrested, you were transported to the Ballarat Base Hospital for assessment due to threats of self-harm and were later returned to the custody of the police.
12You were transferred to the Ballarat police station for an interview and during a record of interview commencing at 4.18 pm you said, amongst other things, the following:
· “When I got let off on bail, but they didn't give me a lift home, I cracked the shits.” (Question 11, 105)
· “Then I went home and chopped up and had a mix. I would have had a couple of bongs and then got beaten by the coppers”. (Question 52-54)
· You did not recall sending text messages to Ms Beaumont early in the evening (Question 131). In relation to the later set of messages, you stated, “I just needed help”. (Question 156)
· You admitted to driving to Haddon. (Question 139)
· You did not recall the incident involving the police vehicle. (Question 144)
“I woke up - I woke up in front of a couple of cars on the wrong side of the road. I was not trying to intentionally swerve at anyone”.
(Questions 148-54, 189)
· No comment to reckless conduct allegations. (Question 161)
· Xanax tablets belonged to your brother. (Question 85)
· You denied resisting arrest. (Question 73)
13
The court was informed by the prosecutor that the matter resolved at the committal mention on 4 November 2021 and thereafter proceeded by way of a straight
hand-up brief from the Magistrates' Court and no witnesses have been
cross-examined.
14Since your arrest on 14 May 2021, you have been remanded in custody and the total number of days to the plea is 416 days. However, as already detailed, you came before the Magistrates' Court at Ballarat on 25 February 2022 where you pleaded guilty to various charges arising from when you were first intercepted at 11.30 pm on 13 May 2021, prior to being bailed and released from the police station at about 2.05 pm on 14 May 2021.
15
In relation to those offences, you were sentenced to three months' imprisonment, which was declared as already been served at that time. Accordingly, not including the day of the plea hearing, you had been remanded in custody for
325 days in relation to the subject offending.
16The prosecution seek an order for the disposal of the Xanax (Alprazolam) tablets relating to Charge 5 on the indictment. You do not oppose the disposal order.
Your criminal record
17
Counsel for the prosecution tendered your criminal record dated
14 February 2022, which you accepted as a true record (see Exhibit 3). I note the following:
(a) On 18 November 2020, at the Ballarat Magistrates' Court, it was proven that you contravened a Family Violence Intervention Order and, without conviction, the matter was adjourned to 17 November 2021 in order for you to undergo various courses.
(b)
Over the years, you have been convicted of various offences involving cannabis. On 23 November 2009, you were convicted of cultivating a narcotic plant, cannabis, and possession of cannabis and was fined. On
4 May 2010
, you were convicted of possessing cannabis and using cannabis and was fined. On 11 July 2011, you were convicted of possessing and using cannabis and were fined and on 27 July 2015, you were convicted of possessing and using cannabis and were fined.
(c)
You have also been convicted of various driving offences including, on
23 November 2009
, being convicted or careless driving of a motor vehicle and sentenced to a fine and on 10 January 2012, you were convicted of driving a vehicle while exceeding the prescribed concentration of drugs and careless driving and sentenced to a community-based order for 12 months which involved 50 hours of unpaid community work and the attendance for assessment and treatment of alcohol and drug matters, together with psychological treatment. At that time, your licence was cancelled and you were disqualified from driving for six months.
On 10 January 2012, you were also convicted of careless driving of a motor vehicle and sentenced to a Community Correction Order.
On 11 February 2016, you were convicted of overtaking a vehicle when unsafe and also obstructing the path of another driver and sentenced to various fines.
Your personal circumstances and background
18Your counsel tendered the following documents:
(a) Defence Submissions, dated 1 July 2022 (Exhibit A);
(b) letter from your mother, Ms Maxine Fraser, dated 30 June 2022 (Exhibit B);
(c) report from the psychologist, Ms Sandra Cokorilo, dated 22 December 2021 (Exhibit C);
(d)
character reference from your former partner, Ms Lilly Beaumont, dated
30 June 2022 (Exhibit D);
(e) medical reports from Dr Bernard Jenner, dated 7 July 2004 and a medical report from Dr M Vagg, dated 19 June 2007 (Exhibit E); and
(f) a certificate from Kangan Institute, July 2021 (Exhibit F).
19Partly based on some of the documents which were tendered on your behalf and various other submissions made to me by your counsel, I note the following.
·You were born and raised in the Ballarat area, being the middle child with an older brother and younger sister. You informed the psychologist Ms Sandra Cokorilo, ('the psychologist'”, who assessed you on 17 November 2021, that you were never exposed or subjected to family violence and reported positive relationships with both parents, both of whom continue to remain supportive.
·Your parents did separate when you were aged 16, after which you resided with your mother, as your father became ill and was hospitalised. Furthermore, between the ages of 17 and 19 you lived with friends, after which you returned to reside at your mother's property with your then partner. With the exception of that two-year period, you have resided in a private rental with your partner and you have consistently lived in a unit on your mother's property.
·You describe yourself as 'not very smart' at school and had literacy problems and at the age of seven was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and was medicated until age 14. Furthermore, you also reported to the psychologist that you had few friendships in high school and noted that you were frequently bullied and expelled in Year 8 due to being involved in a fight (see generally Exhibit E, report of Dr Bernard Jenner dated 7 July 2004). Ultimately, you left secondary school before completing tear 9, after you were assaulted by a peer.
·After leaving school, your worked for approximately twelve months as a roof tiler and then a plasterer.
·As a result of a bicycle collision when you were aged 15, you suffered an Acquired Brain Injury (“ABI”) and consequently was unemployed between the ages of 16 and 27, during which time you were granted a Disability Support Pension on the basis of suffering various consequences of the ABI (see Exhibit E, report of the consultant rehabilitation physician Dr Michael Vagg, dated 1 June 2007). You have performed casual work in your father's excavation business from the age of 27.
·Your reported to the psychologist that you have had three significant relationships in your lifetime. In particular, you had a six-year relationship which ended when you were 25, as you fathered a child to another woman. You remained in that relationship for the next two years and have two sons, aged three and five, from that union. You reported an amicable separation from the mother of your sons and remained in contact with your children until September 2020 when a Family Violence Intervention Order (“FVIO”) was issued due to your ex-partner's allegation that you were “groping” her in front of the children. You reported a positive relationship with your latest partner- Ms Lilly Beaumont- and, as already recorded, you have a son from that relationship.
·In December 2020, you were the victim of a stabbing assault, causing you to suffer what was described by the psychologist, as “persistent post-traumatic stress symptomatology”. You informed the psychologist that you have never been diagnosed with a mental health disorder but reported weekly contact with a psychologist following the stabbing assault. Your counsel informed the court that the person who stabbed you was remanded in the same area of the prison that you are in, which has caused some difficulties.
·You described your time in custody to the psychologist as an “emotional rollercoaster” and that when feeling 'depressed' you spoke to a psychiatric nurse and over the three months leading up to the consultation with the psychologist had been treated with Lexapro(an antidepressant).
·Furthermore, you informed the psychologist of two suicide attempts in the last two years and have also self-harmed on two occasions by cutting yourself when depressed, angry and withdrawing from drugs and struggling with incarceration. You did inform the psychologist there is no family history of bad mental health.
·You reported regular social use of alcohol from age 16 and for the last five years leading up to your incarceration, you were consuming, on average, two to three alcoholic beverages five days per week but your use has never been problematic.
·You reported daily use of four grams of cannabis from the age of 16 and also experimented with ecstasy, MDMA, LSD and cocaine between the ages of 18 and 22. In particular, you reported to the psychologist that you began smoking methamphetamine from the age of 29, consuming up to one gram per day until you were remanded in custody on the current charges. You also reported that you had been abusing benzodiazepine- that is Xanax- weekly since 2020.
·You have also reported that, since being on remand, you have completed 'Ice and Me' and 'Cannabis and Me' programs and was engaged in individual AOD counselling for six weeks and you claim that you have not engaged in any drugtaking since being on remand. Also, I refer to Exhibit F which certifies you completing a Certificate II in Community Services.
Circumstances of current offending
20You informed the psychologist that your mental health deteriorated significantly in the year leading up to your arrest on 14 May 2021. In particular, you stated:
·That you lost contact with your two eldest sons in September 2020 as a result of an FVIO listing their mother as a protected person.
·As already recorded, in December 2020, you were stabbed in a violent assault which resulted in further exacerbation of your mental health.
·
Your current partner Ms Beaumont moved out of your shared home in
May 2020 due to relationship issues stemming from your infidelity and
drug-induced irritability. At that time, you returned to reside with your mother and continued to abuse drugs and suffered depression, which precipitated the two suicide attempts. It was around this time that you committed further offending which culminated on 18 November 2020 at the Ballarat Magistrates' Court, where you pleaded guilty to contravening an FVIO. As I have already recorded, the matter was adjourned for one year in order for you to undergo various courses.
21In relation to the subject offending, you informed the psychologist that you were sleep deprived due to drug use, drug affected, angry, depressed and suicidal, and acted out after you had been arrested.
The evidence of your mother, Mrs Maxine Fraser
22Your mother Maxine Fraser provided a letter dated 13 June 2022. In that letter, she confirmed that you had been diagnosed with ADHD as a child in primary school, causing you to have difficulty in learning and your reading and writing skills were very poor. Furthermore, you had behaviour problems in the classroom, but she notes that you always showed compassion towards others and was always willing to help people.
23
Your mother also confirms you were knocked off a pushbike at approximately
15 years of age, after which you suffered an ABI and after a five-year-long process, you were finally diagnosed with epilepsy when your seizures became worse. During this time, she noted that you self-medicated which caused you to lose your licence for drug driving and you could not hold a stable job or cope with the
day-to-day duties and applied for the Disability Support Pension, which was approved.
24She also confirmed that your mental health did decline after you were unable to see your two elder sons since September 2020 and that you hope that can be remedied in the future.
25In particular, your mother states that she has been in contact with you while you have been on remand and that you are “extremely remorseful” in relation to what you have done and, in particular, “especially remorseful to the emergency workers and first responders that you have put in harm's way”. She notes that you have also written letters to your family and friends asking for their forgiveness.
26Finally, she notes that the charges against you are “so out of character” and, given a second chance, you will enter a mental health program and also you have informed her that, during your time on remand. you were attempting to recover and better yourself by keeping away from drugs.
The evidence of your partner, Ms Lilly Beaumont
27Your partner, Ms Beaumont, supplied a reference dated 30 June 2022, wherein she describes herself as working alongside police as a Triple 0 call taker and despatcher and understands very much the severity of the incidents that have occurred.
28
She states that she has known you since December 2017 and that you commenced a relationship in early 2018 and have had one son as a result of that relationship. She does note that you have separated and got back together over that time and both resided in the same residence from March 2018 to
September 2020, when you both again separated, although, you continued to have contact almost daily.
29Ms Beaumont confirmed that you have had previous diagnoses of ADHD and epilepsy, both which required medication, however, she describes it to be a “struggle” for you to remember to take the medication due to your ABI. She notes that when you were on and off your medication it seemed to trigger mood swings and that you self-medicated with marijuana, as you felt that kept you calm, balanced and able to focus throughout the day. Ms Beaumont also described that you had struggles in life, which she believes contributed to an escalation of your daily marijuana use and ultimately to harder drugs.
30She notes that on multiple occasions she called Triple 0 in the hope that you would be “sectioned” and get the help you require. At that time, she reports you began threatening driving into trees and shooting yourself and the worst was finding you with an electrical cord made into a noose hanging over a bar in the shed and you standing under it. She considers that your erratic behaviour was a cry for help 'rather than an act with intent to hurt others'. Ms Beaumont also describes you as being a good father and you are most happy when connecting with your children.
31In particular, Ms Beaumont says that, during the period of your remand, she has spoken to you over the phone and over video calls and she has seen a lot of change and improvement in your outlook on life. Your way of thinking is more clear-minded and, for the first time since she has known you, you have voiced goals that will better you as a person and as a parent. Furthermore, she notes you are on medication that you require on a daily basis and you are looking forward to getting a job, any job, that is, and are doing programs that will assist in your rehabilitation.
Furthermore, she notes that you have expressed 'multiple times' how you are thankful you have been arrested, as it opened up the help you needed. You also report that you wished your offending had not affected as many people as it did and that you are remorseful about your actions. Your counsel submitted that
Ms Beaumont has no drug history and was not involved with drugs.
The evidence of the psychologist
32The psychologist, Ms Sandra Cokorilo, assessed you on 17 November 2021, on referral from your solicitor. She assessed you in relation to offending occurring from March 2020 and between December 2020 and, in particular, May 2021. She obtained histories in relation to your family and personal life, education and occupational background, relationships, mental health and medical history, and alcohol and substance use.
33The psychologist made a mental state examination and noted that you were polite, cooperative and engaged easily. She assessed your affect to be euthymic and that you maintained appropriate eye contact and spoke with normal rate, volume and tone. You were able to communicate your thoughts coherently and in a linear manner and there was no evidence of any perceptual disturbances or any formal thought order. Although not formally tested, you displayed normal intelligence and there were no overt memory problems. You rated your mood as 5/10 and reported disturbed sleep, weight gain, fluctuating energy and motivation, and worry. You described challenges when incarcerated and reported to the psychologist that you had been “stood over and suffered a broken nose when you were assaulted three months ago”. Since then, you have been placed in protective custody.
34In particular, the psychologist considered that you presented with good insight into your drug use and mental health and their connection to your offending. Furthermore, you appeared genuine in your expression of confidence that you will be able to maintain abstinence in the community after your ultimate release from prison.
35The psychologist performed various tests and ultimately formed the opinion that you suffered from a pre-existing diagnosis of ADHD and ABI, with a history of Cannabis Use Disorder. Furthermore, preceding and during the offending period, you presented with Major Depressive Disorder (“MDD”), Post-Traumatic Stress Disorder (“PTSD) and stimulant and Anxiolytic Use Disorder.
36In particular, the psychologist stated:
“His psychopathology is considered relevant to his current offending. Mr Fraser initiated use of methamphetamine and benzodiazepines approximately 18 months before he was remanded into custody on the current charges. His drug abuse subsequently caused deterioration of his relationships and mental health, precipitating depression and two suicide attempts. Furthermore, in December 2020 he was a victim of a violent stabbing assault where he sustained life-threatening injuries and subsequently developed PTSD which persist to date. His poor mental health in turn perpetuated his drug addiction as it offered escapism in the form of self-medication. Furthermore, impulsivity inherent in his untreated ADHD would have increased his risk of developing substance abuse problems.
Impulsivity, mood instability and low self-control present in ADHD manifest as hasty actions that occur in the moment without forethought and that have high potential for harm. These factors are also considered relevant in Mr Fraser's offending behaviour, and, in particular, his driving offences as inattention, impulsiveness and risk-taking in ADHD are cited as factors contributing to increased incidence of driving offences in individuals with ADHD.
Moreover, impulse control difficulties in PTSD may manifest as undeliberate, reckless and/or self-destructive actions, including substance use and reckless driving. Reduced attention and restriction in information processing capacity, impulsivity stemming from disinhibition and emotional dysregulation following exposure to a traumatic event, are thought to drive recklessness in PTSD. Presence of greater depression and impairment, rumination, severity of trauma, and being male, are relevant to Mr Fraser as recognised risk factors associated with presence of reckless behaviours in n PTSD”.
(sic) (My emphasis)
37Later, the psychologist stated:
“…Mr Fraser met criteria for Cannabis, Stimulant and Anxiolytic Use Disorders. There is no doubt that his substance use disorders have contributed to his offending conduct. Substance use would have additionally heightened his risk of engaging in impulsive and reckless behaviour, as well as impaired insight and decision-making and judgement…”.
(my emphasis)
38The psychologist also expressed the opinion that the general risk of re-offending is considered to be 'moderate' on the basis of your history of polysubstance abuse and compromised mental health, characterised by impulsivity and emotional deregulation. It was noted that you have support from your parents, an offer of suitable accommodation on your mother's property and employment with your father.
39The psychologist also stated that your - and again, I emphasise this:
“…mental health is likely compromised by imprisonment. [Your] PTSD with intrusions and hyperarousal is exacerbated by the volatile custodial environment. [You have] been intimated, stood over and assaulted and is currently in protective custody. Further, [you are] unlikely to receive treatment specific to MDD, PTSD and ADHD, which limits prospects of rehabilitation whilst in custody”.
Your evidence
40During the course of the Plea, your counsel called you to give evidence. In particular, you gave evidence that:
· Prior to your incarceration you could not get off drugs.
· Coming to jail has been 'really good' for you.
· It has been very hard to overcome your problems, but you appreciate you will otherwise end up dead.
· There has been no illicit substance abuse since being in custody. You have been tested for drugs on five or six times and, on all occasions, have tested negative'
· In relation to the subject offending, you do not recall much of the night, but accept that it was definitely outrageous behaviour and uncalled for and it was totally wrong to put other people's lives at risk and you are so glad that nothing happened.
· No one should fear for their life and you feel terrible about the subject offending.
· In relation to sending the texts to your partner, it is terrible that you put her through these dramas and you are trying to work things out. She is supportive and you, as a team, have had your son together.
· Upon your release, you intend to get the help and support you need and to go back to work with your father, in your father's excavation business as a machine operator.
· You hope to re-establish the relationship with Lilly and your son.
Matters in mitigation of your sentence
41Initially, your counsel submitted that the subject offending on 14 May 2021 occurred in a period when you were in obvious heightened psychological distress. In particular, she notes that the SMS messages to Ms Beaumont and the driving behaviour combined, speak of concerns that led the police to bring you to hospital before proceeding to interview you. Your counsel submitted the following matters are relevant in mitigation of your sentence.
(a)The matter, after various discussions, resolved to a plea on 4 November 2021. It should be construed as an early plea, which has utilitarian value in that it saves the cost and time of a trial.
(b)Furthermore, such plea was given during the period of trial suspension due to the pandemic and, accordingly, you should attract a further discount on your sentence, consistent with the principles enunciated in
Worboyes v R.[3]
[3][2021] VSCA 169
(c) It was also submitted such plea was demonstrative of remorse in respect of the offending. It is obviously a matter for the court to determine whether or not a plea of guilty is indicative of remorse.[4] However, I do accept that you have shown remorse about your actions, as demonstrated by, not only your early plea, but also by the following actions:
[4]See Phillips v The Queen [2012] VSCA 140
(i) your comments to the psychologist;
(ii) the comments made to your mother during telephone discussions during your period of incarceration; and
(iii) your evidence before the court.
(d) That you have endured hardship, taking into account the burden of being in custody through the uncertainty of the COVID-19 pandemic. In this respect, the Pandemic has resulted in the need for various lockdowns, less visitation rights and the need to isolate when first arriving in prison. Furthermore, in the circumstances of this matter, you have served time in isolation, seemingly in part, according to the psychologist, because of being intimidated, stood over and assaulted in circumstances where the person who attacked you with a knife is also in the same prison;
(e) Your counsel further submitted that the contents of the report from the psychologist enlivens principles 1, 5 and 6 of the principles set out in R v Verdins, R v Buckley; R v Vo.[5]I refer to paragraph 32 of Verdins, which states in part:
'Impaired mental functioning, whether temporary or permanent is relevant to sentencing in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances and denunciation is less likely to be a relevant sentencing objective.
2.…….
3. ………
4. ………
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment”.;
[5](2007) 16 VR 269
It was submitted on the basis of the opinion of the psychologist, that your untreated ADHD gives rise to impulsivity, mood instability and low self-control, which manifests as “hasty actions that occur in the moment without forethought and that have high potential for harm”. In particular, the psychologist was of the opinion that such factors were relevant to the increased incidence of driving offences in individuals with ADHD. She was also of the opinion that impulse-control difficulties as a result of PTSD may also manifest in undeliberate reckless and/or
self-destructive actions, such as reckless driving.
Also, in relation to principles 5 and 6, the psychologist was of the opinion that your mental health is likely to be 'compromised by imprisonment' and, in particular, your PTSD with intrusions of hyperarousal, is exacerbated by the volatile custodial environment.
It was submitted by your counsel that one of the overarching difficulties that arise from your head injury that has left you in receipt of the Disability Support Pension. It was submitted that your situation arising from school days and the advent of your ABI attract the principles outlined in Bugmy v R.[6] In this respect, it was submitted by your counsel that it is not a background of deprivation in early life in the sense of Bugmy, but rather, the circumstances surrounding you suffering ADHD and the ABI give rise to a background where your life was shaped by the commencement of drugs due to these circumstances. I accept such submissions;
(f) It was submitted by your counsel that a delay of 12 months in current times may not warrant “much concern”. However, so it was submitted, there was still a period of uncertainty for you in circumstances where you indicated a willingness to plead guilty at the end of 2021;
(g) Your counsel also submitted that the concept of “totality” is relevant, given that on 25 February 2022 at the Ballarat Magistrates' Court, you pleaded guilty to various charges arising from when you were first intercepted at 11.30 pm on 13 May 2021. As already noted, you were sentenced to three months' imprisonment, which was declared as having already been served at that time.
[6](2013) 249 CLR 571
42Your counsel accepted that an appropriate sentence is one of a head sentence and a non-parole period. However, given the submissions in relation to mitigation and, in particular, the relevance of the so-called Verdins number one principle, together with the argument advanced in relation to Bugmy, a sentence should be significantly moderated to take into account those matters.
The response of the Prosecution
43Counsel for the prosecution tendered a document headed 'Prosecution Submissions on Sentence' (Exhibit 2). In that document, counsel submitted:
(a) There was no issue that your plea of guilty was an early plea, which carried utilitarian benefit, entitling you to a discount on sentence. Furthermore, it was accepted that the principles set out in Worboyes[7] are relevant and applicable;
[7](op cit)
(b) There was no issue that the COVID-19 pandemic made part or all of your time in custody more onerous due to the restrictions imposed by the prisons and periods of quarantine.
c)The prosecution also submitted that the nature of the offending called for a term of imprisonment with a head term and non-parole period and such offending attracting principles of general and specific deterrence, denunciation, community protection and just punishment.
(d) In relation to the submission by your counsel that your moral culpability is reduced because of your pre-existing mental health, counsel for the prosecution made the following submissions:
(i)He noted the report from the psychologist relied on by you does not relate to the current offending before the court. I should add, on my reading of such report, it probably does extend to such offending. For example, see paragraph 13, which relates in part to offending in May 2021 and also paragraph 75 which makes reference to “[your] driving offences”. Although not totally clear, the psychologist does, however, record that she did not have available your criminal history at the time of the referral. I consider that, even if the May 2021 reference is not a reference to the period where you were driving on the wrong side of the road et cetera, I consider that the opinions expressed in her report do have relevance to the subject offending.
(ii)The prosecution seemingly accepted that you suffer from a disadvantaged background, but submit that this has to be tempered as a matter of weight, particularly in the light of serious offending and the need for community protection. It was submitted that, at some point, mitigation must yield in the face of serious offending and the need for community protection.
(iii)That the prosecution seemingly accept that your psychopathology plays a role in your current offending and that is to be considered in the context of self-perpetuating substance abuse as exacerbating your condition and having contributed to your offending. Reference was made to paragraph 77 of the report from the psychologist.
e) Ultimately, counsel for the prosecution submitted that any “Verdins” considerations are limited and must be tempered accordingly. It is to be assumed that your moral culpability must be regarded as significant, whereby specific and general deterrence loom large in this offending. It was further submitted that you have a relevant criminal history.
(f) Furthermore, in relation to Charge 2, that is, intentionally exposing an emergency worker to risk by driving, counsel for the prosecution submitted such an offence is a very serious offence, which is made clear by the maximum penalty of 20 years' imprisonment. Furthermore, he notes that the Court of Appeal has emphasised that a clear and unequivocal message is to be sent, that conduct of this type is not to be tolerated, giving much weight to general deterrence, just punishment and denunciation. Reference was made to the Court of Appeal decision in Jaeger v R[8].
[8][2020] VSCA 116 at paragraphs [35]-[36]
(g) It was further submitted that the offending can be characterised with high objective seriousness, taking into account the following:
i.you drove your vehicle without headlights in the early hours of morning while approaching a police officer vehicle;
ii.you drove at more than 80 kilometres per hour towards police, causing police to take evasive action, narrowly missing a collision;
iii.you crossed double-white lines on the highway and drove on the wrong side as you approached the police vehicle.
(h) In relation to the other driving offences - Charge 4, recklessly engage in conduct, namely, driving deliberately on the wrong side of the road, placing persons in danger of death - that is also a serious offence, which is made clear by the maximum penalty of 10 years' imprisonment. It was further submitted that the offending can be characterised with high objective seriousness, taking into account the following:
i.
you were detected driving at certain times at a speed of around
150 kilometres per hour;
ii.you drove on the wrong side of the road towards oncoming traffic, causing other road users to take evasive action to avoid collision.
44Counsel for the prosecution also noted that s16(3D) of the Sentencing Act [1991] requires that every term of imprisonment imposed on a person for an offence under s317AC of the Crimes Act [1958] must, unless directed otherwise by the court, be served cumulatively on any uncompleted sentence or sentence of imprisonment imposed on that offender, whether before or at the same time as that term.
Conclusion
45Your offending occurred in a drug-fuelled rampage from approximately 2.28 am to approximately 10.00 am on 14 May 2021. During that time, you committed two serious driving offences (Charges 2 and 4 on the Indictment) and also breached, on two occasions, an FVIO made on 3 February 2021, by texting your estranged partner Ms Beaumont (Charges 1 and 3 on the Indictment). Furthermore, when you were finally apprehended on 14 May 2021, police located a press-sealed plastic bag in your vehicle containing thirteen tablets of Alprazolam; that is, Xanax (Charge 5 on the indictment).
46Again, when apprehended, you resisted arrest by a policeman by grabbing the arm of the policeman and pulling it under your body, holding it under your torso. It was necessary for another policeman to strike you at this point so you would release the first policeman’s arm (Summary Charge 14 - resist arrest).
47As I have already recorded, at about 2.00 am on 14 May 2021, you were released from Ballarat police station on bail in relation to the various charges laid after the inspection of your vehicle earlier that night. Accordingly, you were on bail when you intentionally exposed emergency workers, police in this case, to risk by driving (Charge 2 on the indictment) and when you recklessly engaged in conduct, that is, deliberately driving on the wrong side of the road that placed persons in danger (Charge 4 on the indictment).
After leaving the police station in the early hours of 14 May 2021, you stated in your record of interview, you described “cracking the shits” when the police did not give you a lift home and, furthermore, when you arrived home, you had a “couple of bongs”. I consider that the fact that such offending - that is Charges 2 and 4 on the indictment - occurred when you were on bail to be an aggravating factor.
48At about 2.29 am on 14 March 2021, that is to say, approximately half an hour after you left the police station, you sent a series of text messages to Ms Beaumont which included such things as:
·“I’m killing myself tonight”;
·“I'm going to kill some cops”;
·“If I ever needed help it would be now”,
and when there was no response stated,
·“Thought just as much. Enjoy your life 'cause I'm out”.
49Ms Beaumont states, of course, that you have done this many times in the past and noted:
“Generally when he wants to make me feel bad he usually says it's my fault when he does it”.
50Following that first lot of text messages, Ms Beaumont reported what occurred to police, who ultimately conducted a welfare check and 3.33 am. Initially, you were not present at your premises, but later you arrived in the Nissan Navara, at which time you were shouting at police to leave your alone. Police determined that you were not a threat to anyone at that stage and left the address.
51
Between 8.40 am and 8.55 am, you sent a further series of text messages to
Ms Beaumont and in such messages you referred to her as 'useless', called her derogatory names and threatened to kill yourself and accused her of not offering you any help at all.
52
Ms Beaumont does note that you have never been physically abusive to her but have been, what she describes as “emotionally abusive”, and it gets her very upset, and she considers that you were using “emotional blackmail” and “trying to make [her] feel bad”. The first series of text messages, commencing at 2.29 am on
14 March 2021, constitute Charge 1 and the text messages commencing at
8.40 am on 14 March 2021, are clearly in contravention of the FVIO made by the Ballarat Magistrates' Court on 3 February 2021.
53It is also to be remembered that on 18 November 2020, you were found to have contravened a Family Violence Interim Intervention Order with no finding of conviction and the matter was adjourned to 17 November 2021 in order that you participate in an accredited Men's Behaviour Program. Obviously, enough of the subject offending occurred during the period following some months after the making of the order in November 2020.
54
Although you did not threaten violence to Ms Beaumont, you clearly made her upset with your threats to kill police officers and yourself. Furthermore, in the second set of texts, you were derogatory and called her various names which, again, was very upsetting. Although she was aware of you doing this in the past,
Ms Beaumont made the comment that such texts, although in breach of the order, were more cries for help, rather than an act with an intent to hurt anyone.
55The offence of intentionally exposing an emergency officer to risk by driving is a serious offence, as is made manifest by the maximum penalty of 20 years' imprisonment. The circumstances of this matter is that approximately 4.24 am on 14 May 2021, two policemen were patrolling the neighbourhood suburb of Alphington in a fully marked divisional patrol wagon. They were travelling east when they observed your headlights travelling west. As your vehicle approached them, the headlights were switched off, with the vehicle veering across the dividing line onto the wrong side of the road and into the path of the police vehicle. The police radar determined the rate of speed to be 89 kilometres per hour as you headed straight towards the police vehicle in an attempt to ram it.
56The driver of the police vehicle was forced to take evasive action to prevent a head-on collision, which consisted of veering left and off the road into parkway bays adjacent to the road they were driving on. A collision was narrowly missed.
57I accept the submission of counsel for the prosecution that such offending can be characterised as high objective seriousness, taking into account the following:
(a) you drove your vehicle without headlights in the early hours of the morning while approaching a police officer vehicle;
(b) you drove at approximately 89 kilometres per hour towards the police vehicle, causing the police vehicle to take evasive action and narrowly missing a collision;
(c) you crossed over double-white lines and drove on the wrong side of the road towards the police vehicle; and
(d) if a collision had occurred, the consequences could have been catastrophic, with the potential to cause death.
58It is to be remembered that the police, at the time of this offending, were doing no more than pursuing normal patrol duties on a highway in the community. I do refer to the Court of Appeal decision of Jaeger v R,[9] wherein the Court of Appeal, commenting on the aggravated offence of intentionally exposing an emergency worker to risk by driving (s317AD(1)(a) of the Crimes Act [1958]) stated at paragraph 36 the following, in determining what should be given prominence in the sentence:
'In our view, general deterrence, punishment and denunciation all needed to be given prominence in the sentence. As we have said, the applicant's drug-fuelled conduct founding Charge 3 was outrageous. It placed in danger, and caused actual injury to, two police officers, upon whom the community relies for protection and the maintenance of order. The message needs to be sent clearly and unequivocally to like-minded individuals that conduct such as the applicant's simply cannot and will not be tolerated. We regard the applicant's as being a serious example of a serious offence, warranting stern punishment.'
[9][2020] VSCA 116.see also Smith v The Queen [2022] VSCA 148 a [49]-[51]
59I should add, the difference between s317AD(1)(a) and s317AC(1) of the Crimes Act [1958] is that the former involves the driving giving rise to an injury which was not the case here.
60The offence of recklessly engaging in conduct, namely, driving on the wrong side of the road that placed or may have placed persons in danger of death, is also a serious offence. Such offence is contrary to s233 of the Crimes Act and carries a maximum period of ten years' imprisonment. In the circumstances of this matter, I do agree that such offending can be characterised as of high objective seriousness, taking into account the following; at approximately 9.10 am, police observed you travelling in your Nissan Navara vehicle at a very fast rate of speed along the Glenelg Highway, after which pursued you in a police vehicle at a speed of about 150 kilometres per hour, but were unable to catch up. As you travelled along the Glenelg Highway, you were observed to:
(a) Cross onto the wrong side of the road over double lines and drive directly at three vehicles in the opposite direction, causing the three vehicles to take evasive action to avoid collision and move off the road;
(b) You again continued driving and again crossed the double lines, driving into oncoming traffic. Another two vehicles driving in the opposite direction had taken evasive action to avoid collision. Again, you changed back to the correct side of the road;
(c) You were later observed to overtake a vehicle over double lines, again, crossed the wrong side of the road towards oncoming traffic, with another car having to take evasive action to avoid a collision;
(d) After losing sight of the vehicle, police ultimately made further observations of your Nissan Navara at around 9.45 am and, indeed, a witness stated that your vehicle swerved, forcing a white van off the road and narrowly avoiding a collision. You could be heard stating, “get out of the fucking road you dogs”, and appeared to be laughing as you said this.
(e) Over that period of time, you endangered approximately six vehicles, with drivers doing no more than going about their business, obeying the road rules. Again, the potential for a collision with catastrophic results was high.
61I note that you do have two prior convictions for careless driving, although some time ago, and also driving while exceeding the prescribed concentration of drugs, again, which was some time ago. On 11 February 2020, you were convicted of overtaking when unsafe and of also obstructing the path of another vehicle and sentenced to various fines. I consider that such past history is not overly significant, but specific deterrence is relevant, given your more recent conviction for overtaking a vehicle when unsafe.
62In mitigation of any sentence, I consider the following matters are relevant in mitigation:
(a) your very early plea of guilty which has utilitarian value and saved the cost and time of a trial and further discount on your sentence, consistent with the principles enunciated in Worboyes;[10]
(b) you have demonstrated genuine remorse in respect of your offending;
(c) you have endured hardship, taking into account the burden of being in custody throughout the uncertainty of the COVID-19 pandemic; and
(d) I consider that the report of the psychologist does enliven principles 1, 5 and 6 of the so-called principles set out in Verdins[11] and also gives rise to Bugmy[12] considerations.
[10](op cit)
[11](op cit)
[12] Bugmy v R (203) 249 CLR 571.
63
I give little weight to the submission of “delay”. Although not a matter of mitigation per se, I also have taken account of totality in relation to the hearing of this matter before the Ballarat Magistrates' Court on 25 February 2020, where you pleaded guilty on various charges resulting from your first interception at 11.30 pm on
13 March 2020 and when you were sentenced to three months' imprisonment.
64I also consider that, seemingly, you are making a real effort to overcome your drug habit which has caused so much trouble for you in the past. Furthermore, you have commented that your period of incarceration, your first period of incarceration, has been a good thing for you, allowing you to make plans for the future and overcome your drug use.
65Also, it would appear that your mother and father are very supportive and, indeed, you hope to obtain employment with your father as a machine operator after your release from imprisonment and will also have access to stable accommodation on your mother's property.
66
Seemingly, you still keep in contact with your former partner and, indeed, from what she told the court in her reference, very much will depend on how you avoid drugs after your release, as to whether or not the relationship can be
re-established.
67Overall, I consider your chances of rehabilitation to be “reasonable”, given that you are going to have social support on your release and the prospect of employment. My reservation is that, when given the chance back in 2021, it would appear you did turn to drugs when under any degree of stress. Hopefully, you can maintain the attitude that you have in prison and, when released, hopefully avoid all sorts of drugs, including cannabis. This will not be easy, but I accept that you do have some appreciation of what life could be like if you sorted this problem out.
68After careful consideration, I intend to convict you and sentence you to an aggregate fine in relation to the two breaches of the FVIO, but such fine will be stern, given that I consider, among other things, specific deterrence is appropriate, bearing in mind your earlier breaches of similar orders.
69In relation to Charges 2 and 4, I intend to convict you and sentence you to periods of imprisonment in relation to each charge. In coming to an appropriate sentence, I do take account, consistent with Court of Appeal authority, of various matters, including general deterrence, punishment and denunciation, all needing to be given prominence in the sentence.
70However, as I have already pointed out, I consider that your moral culpability has been tempered by the operation of principle 1 of Verdins[13] and that your impulsive behaviour on that night can be traced back to the types of matters referenced by the psychologist, that is to say, your untreated ADHD, your PTSD symptoms and your ABI - all of which play a role involving inattention, impulsiveness and risk taking.
[13] R v Verdins; R v Buckley;R v Vo (2007) 16VR 269.
71I do accept that this reduces your moral culpability and, in all the circumstances, affects punishment that is just, bearing in mind that denunciation is less likely to be a relevant sentencing factor.
72
Furthermore, again, based on the evidence of the psychologist, I consider that, given your mental health, your sentence will weigh more heavily on you, compared to a person of normal health (see Verdins principle 5) and there is a serious risk that imprisonment will have a significant adverse effect on your mental health
(see Verdins principle 6). Both these matters are relevant to mitigating punishment reflected in the sentence.
73In relation to Charge 5, that is, possessing a drug of dependence, namely Alprazolam (Xanax tablets) and in relation to Summary Charge 14, that is, resisting arrest - I then intend to fine you for both of these offences. In this respect, I accept that the Xanax tablets were for personal use and that resisting arrest was
short-lived and did not give rise to any of the police officers suffering any significant type of injury.
74
In relation to Charge 17, I am going to convict you of such offence, as I consider this was a flagrant disregard of the bail conditions made in the early hours of
14 May 2021. Within a couple of hours you were involved in serious offending - that is, intentionally exposing emergency workers to risk by driving on the morning of 14 May and later, in relation to the driving conduct endangering life.
75However, I have already recorded in this sentence that I have regard to the fact that your offending occurred while you were on bail was an aggravating factor involved in each of the driving offences and, accordingly, will not sentence you in regard to that offence, as this would have the potential to give rise to double punishment. In this respect, I refer to Zarghami v R.[14]
[14][2020] VSCA 74 at paragraphs [25]-[33]
76Please be upstanding:
a) In relation to Charge 1 on the indictment, you are convicted and sentenced to an aggregate fine of $1,500 (see Charge 3).
b) In relation to Charge 2 on the indictment, you are convicted and sentenced to a period of imprisonment of three years and six months. This is the base sentence.
Having been found guilty of a “serious motor vehicle offence”, as defined in s87P of the Sentencing Act [1991], I order, pursuant to s89(1) of the Sentencing Act [1991], that your licence or permit to drive a motor vehicle be cancelled for a period of thirty months from this date.
c) In relation to Charge 3, you are convicted and sentenced to an aggregate fine of $1,500 (see Charge 1);
d) In relation to Charge 4, you are convicted and sentenced to a period of imprisonment of 12 months.
e) In relation to Charge 5, you are convicted and sentenced to a fine of $250;
f) In relation to uplifted Charge 14, you are convicted and sentenced to a fine of $300;
g) In relation to uplifted Charge 17, I convict you and discharge you:
69I direct that six months of the sentence in relation to Charge 4 be cumulated with the sentence in relation to Charge 2. The total effective sentence is four years, and I order there be a non-parole period of two years and eight months;
70
I declare that you have served up to, but not including this day, 471 days in
pre-sentence detention and that such period should be administratively deducted from the sentence ordered against you;
71I grant the application for the Order for disposal in respect of the Xanax tablets;
72I declare, save for your pleas of guilty, in relation to Charges 2 and 4, I would have ordered a period of imprisonment of six years, with a non-parole period of four years.
73HIS HONOUR: Mr Fraser, I'll address this to you. It'll probably be explained to you by Mr Paull precisely what's happened and you probably took a fair bit of it in. You've got a little bit more to go - you've got some more to go on your sentence. What you have to realise is, it's a very serious offence, or two serious offences, you were involved in- in particular driving at the police and, also, that you're driving involving other drivers on the road when you're crossing over the road and things like that.
74You have to understand that, firstly, in relation to the police, they're doing no more than their everyday job and, as described by our Court of Appeal, it's really outrageous behaviour. And secondly, but for the police and, indeed, the other offence of driving, it could've ended up in absolutely catastrophe. People could've been killed or severely injured and that's what you have to understand.
75On the other side of the coin, as I hope I made plain, I have been impressed with your attitude in prison. You seem to have come to a realisation that life is not going to be any good for you unless you beat this drug habit and you seem to be doing all the right things, based on what you've told me in your evidence and what you've told others. And indeed, when you really boil it down, your drug habit and, indeed, your other issues, your ADHD and your acquired brain injury, those things are all playing a role but drugs, obviously, are going to be something the sooner you get over taking drugs, the happier your life's going to be and I tend to think you're coming to that realisation.
76What I said in the sentence also is this: when you are ultimately released from prison, you're more fortunate than some that you probably have a job to go to with your father and have accommodation available with your mother and with the potential of hopefully resuming your relationship with Ms Beaumont. But all those matters are going to be in your hands and I'm the first to admit that, even all this good work you're doing seemingly in prison now, it won't be easy when you get out of prison.
77You're going to have to avoid friends in the drug area, you're going to have to make real efforts to keep away from cannabis and whatever else you were taking and that won't be easy. But all I can ask you to do is just think back on what it was like when you have been taking drugs and the trouble that that's got you into. So they're the sort of things you really have to bear in mind.
78So it's not all bleak, Mr Fraser. You're a young man, you've still got a lot of life in front of you but you have to make these decisions and it seems like you're starting to make some very sensible decisions. So I wish you well for the future after you're released from prison.
79Yes, anything else to raise?
80COUNSEL: No, Your Honour.
81HIS HONOUR: Yes, thank you. Yes, we'll adjourn sine die, thank you.
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