Director of Public Prosecutions v Hall
[2023] VCC 1495
•24 August 2023
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-01698
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEN WILLIAM HALL |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Ballarat (Plea); Melbourne (Sentence) | |
DATE OF HEARING: | 8 June 2023, 24 August 2023 | |
DATE OF SENTENCE: | 24 August 2023 | |
CASE MAY BE CITED AS: | DPP v HALL | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1495 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Plea of Guilty – Aggravated recklessly exposing an emergency worker to risk by driving – reckless conduct endangering life – Drive in a manner dangerous – commit indictable offence on bail – Category 2 offence –Judge found exceptions under s5(2H) did not exist – relevant prior criminal history
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; DPP v Lombardo [2022] VSCA 204; McKay v The King (No 2) [2023] VSCA 8
Sentence: Total effective sentence of 26 months. Non-parole period of 13 months. s6AAA 4 years' imprisonment with a non-parole period of two and a half years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Grant | Office of Public Prosecutions |
| For the Accused | Ms E. Strugnell | Matthew Mahady Criminal Law |
HER HONOUR:
1Ben Hall, you have pleaded guilty to four offences, committed in the early hours of 14 May 2022, in Bendigo.
2
At the time you were 27. You were living in Bamawm, which is around
25 kilometres from Echuca, with your partner and two children. You were a valued employee at your workplace, where you had been employed for seven years.
3On 11 May 2022 you purchased an olive coloured Ford Falcon for $700 from a scrap metal dealer in Benalla.
4On the evening of Friday 13 May 2022 you drove that Falcon and parked it in an open air carpark in Mundy Street, between McCrae and Hargreaves Street in Bendigo. You had two passengers – 22 year old William Dobson and 19 year old Brayden Tonks. You and these two young men walked to the Deck nightclub, which was not far away, on McCrae Street.
5CCTV footage shows that the three of you went into the Deck, at around 1.15 am, spoke to some of the other people there, and then left again around four minutes later. You all went back to your Falcon. Voices were recorded on the footage saying 'get the Mexo flag out and 'take off the hubbies'. Tonks and Dobson got into the car, as did you. You drove out of the carpark into Mundy Street, and then into McCrae Street towards the Deck.
6You immediately started doing a series of burnouts and swerves across the width of McCrae Street, losing traction, producing smoke from the wheels, and making a lot of noise. You did this repeatedly. There were a number of people, presumably who were also patrons of the Deck, on the street watching you, filming on their phones and encouraging your actions. The passenger in the back seat (Mr Tonks) held a large Mexican flag on a stick, out the window.
7A marked police divisional van had been patrolling the area. Shortly after you started the loss of traction manoeuvres, the police car came to a halt on McCrae Street, across the road from the Deck. It was near the centre of the south-east bound lanes of McCrae Street. The police vehicle had its siren on and flashing lights were activated. When the police arrived you were driving north-west up McCrae Street, back towards the Deck and the people on the street. The footage shows that once the police car stopped you did a U-turn, drifting your rear wheels around, so that your car was close to and nearly directly behind the police vehicle, facing the same direction.
8You steered to your right, around the police vehicle, then spun your car approximately 270° so that it was perpendicular across the front of the police vehicle. You then turned hard right to drive back up McCrae Street. As you did this hard right hand turn, the side of your car impacted the front driver’s side corner of the police vehicle.
9That conduct gives rise to Charge 1, the aggravated offence of recklessly exposing emergency workers on duty to risk by driving. The aggravating circumstance in your case is that your driving caused damage to the police vehicle.
10
After hitting the police car you continued down McCrae Street, and then carried out a number of loss of traction manoeuvres. The police car left. For around
30 seconds you continued to drive in this manner, making your way back up to where there were people watching, outside the Deck. These watchers were filming you and egging you on. Some were on the roadway. Your driving recklessly placed those watching you at risk of death. Your final burnout brought your car to nearly the same spot where the police vehicle had stopped, facing towards the centre of town. A police car was approaching, with lights and sirens activated. You took off, at speed, down McCrae Street towards the centre of town. The loss of traction driving on McCrae Street, near these watchers, gives rise to Charge 2, reckless conduct endangering life.
11You drove across View Street, and then turned right into Short Street. CCTV then picked you up driving your car at a fast rate down View Street, running a red light at the intersection of View Street and the Midland Highway, and then turning left into the Midland Highway. It is worth noting that this is a major intersection in the centre of Bendigo.
12You then turned right into Williamson Street, did another burnout at the roundabout where Hargreaves crosses Williamson Street and then drove back onto the Midland Highway. The prosecution have noted that in this period of driving there were other cars on the road, and you overtook numerous other vehicles.
13Police were able to determine where you drove by a combination of CCTV footage and gouge marks left on the road by the rim of a burst tyre on your car. These marks followed around 3.5 kilometres through the back-streets of Bendigo before coming to an end at the intersection of Smith Street and Norfolk Street North. This driving, after the collision with the police vehicle and after you left the area in front of the Deck nightclub, gives rise to Summary Charge 5, dangerous driving. To be clear, what I am dealing with there is after you left the area, and the driving, which is covered by the footage.
14The burnt out shell of the Falcon was found by police two days later. You are not charged with any offence for the destruction of that car.
15You were arrested on 14 May 2022, at your home. Your partner and two children were present when the police arrested you and searched your home.
16The cost of the repairs to police vehicle for the damage which you caused by colliding with it was $1,653.14.
17At the time of these offences you were on bail, leading to Summary Charge 8, committing an indictable offence whilst on bail.
Personal Circumstances
18You initially lived in Echuca with your family - your mother, father, and older brother - and you started primary school there. You all moved to Kempsey in New South Wales after you had finished Grade 2. A letter in May 2004, when you were nine, notes that you had been having difficulties with attention, concentration, impulsivity and high levels of activity. You would get into trouble at school for talking in class and fidgeting. You were easily distracted and around two years behind in reading and literacy. You had already repeated a year at school.[1]
[1]See Exhibit D3 for this and the following paragraphs.
19The letter states that your behaviour at home was challenging, with outbursts of anger and difficulty with rules. Your parents struggled with you. You were diagnosed with ADHD, Oppositional Defiant Disorder, and learning difficulties. It was suggested you be prescribed an antidepressant or Ritalin[2], as well as to be given assistance with your learning difficulties and to be given a teacher’s aide.
[2]See Exhibit D4.
20Your uncle provided a letter in support of you. He says that your parents’ marriage fell apart whilst you were all in New South Wales, and that you did not adjust well to their separation. Your mother turned to alcohol, and her mental health suffered. You were a teenager when you and your mother returned to Echuca. You struggled to fit in and there were the issues of your mother’s alcohol abuse and mental health problems. Your father was away and you missed him. Your uncle says that you became rebellious and you started couch surfing.
21Other documents in Exhibit D3 also refer to ongoing conflicts with your mother. The notes in respect to a Children’s Court Group Conference in November 2011, when you were 16, set out that you were then living with your mother in Echuca but that both of you did not think that was ideal. Your father was living in Melbourne and although you had contact with him, he could not provide you with a home. Youth Justice was helping you find accommodation away from your mother. You had been involved in programs through Youth Justice. One of the program managers said that you had a great work ethic. You did a 16 week drug and alcohol group program, and you attended the Cool Heads Program, regarding road trauma.
22One of the offences for which you were in the Children’ Court involved some conflict with your mother, in breach of a family violence intervention order. I note that charge not because it or the other charges at that time can be taken into account as part of your criminal record, but because it supports what I was told about the conflict between you and your mother.
23The documents provided included a letter from a paediatrician in 2009, when you were 15, indicating you had been diagnosed with ADHD, Asperger’s Syndrome, Oppositional Defiant Disorder and anxiety.[3] Attached to that letter was a letter from your mother, seeking that you be put into care to give her respite, and noting that your father would not take you. She said that you had been seeing someone at Echuca Child and Adolescent Mental Health Services on a regular basis.
[3]Letter of Dr McClennan dated 2.11.9 – D3 page 1.
24As I have already noted you struggled at school. You had to repeat Grade 2, you were easily distracted and impulsive. Efforts were made to assist you with an Occupational Therapist, psychologist, Specialist Reading Teacher, Paediatrician, Speech Pathologist, and a Teacher's Aide.[4] Back in Victoria you again had difficulties at school, linked to your ADHD and behavioural issues, and you were asked to repeat Year 8. You have managed to complete a Year 10 equivalent at TAFE.
[4]Defence submissions [5]f(ii).
25Your mother was apparently an alcoholic, emotionally volatile, and suffered from bipolar disorder. According to the letters from your partner and her mother, your mother would undermine you to your face and to others, saying you would never hold a job. She neglected you and was unstable. When you were 15, you moved out of your mother’s house and into the family home of Mikayla, who is your present partner, and her mother. You lived with them for a year, paying rent and being respectful and keeping the rules.[5] You helped around the house and were treated as one of the family.
[5]Reference of K Puls,
26You formed a romantic relationship with Mikayla, who was then 15 years old, and you were 16. You report that between the ages of 16 to 18 you were couch surfing before you and Mikayla secured public housing. You got a job, and worked hard at that and making a home.
27Mikayla has written a supportive reference for you. She describes getting to know you, and how you struggled with your mother’s emotional abuse. You used Cannabis to regulate your emotions – which you found hard to self-regulate generally. You would have anger outbursts and become extremely agitated. She says that after you moved in with her family you had minimal contact with your mother.
28Mikayla has a good work history. She worked initially as a beautician and now she works as a receptionist at a medical centre. She had not had contact with the criminal justice system.
29When you were 18 you and Mikayla moved in together. You grew up and learned how to manage the financial aspects of life. You ceased smoking Cannabis. You have been a hands-on father. Mikayla and her mother say that you have a great work ethic, working hard and taking pride in providing for your family. You have two children, now aged two and seven. At the time of this offending you had worked for the same employer for seven years, in different roles. You were a valued employee, with good relationships with clients and your co-workers.
30When your second child was born, in 2020, you and Mikayla worked to save money to buy your own property. You purchased your own home, on 4.5 acres, at Bamawm in May 2021.
31You have been a positive role model and a support for the child of one of Mikayla’s friends. This boy also suffers from ADHD. You acted as a mentor to him, taking him motorbike riding, talking with him, and encouraging him to take part in and stick with activities at school.[6]
32
In the last two years you have suffered the loss of two close friends, one to suicide in 2022. You sought help for grief in 2021, attending a psychologist for
10 sessions, but you did not like taking the medication you were prescribed, as you associated medications with your mother’s addictions.[7]
[6] Reference of K Pisani
[7]Reference of M Wellard, page 2
33Mikayla has described the shock and impact of your arrest and incarceration in May 2022. Your children were and continue to be distressed by seeing you being arrested, and by your absence from the home. Mikayla now carries the financial burden of raising two children, and paying for the mortgage. She has had to change jobs, and work more hours. She has become anxious and has panic attacks. She has to rely on her mother more to care for the children.
34Your children are growing up without you there. They miss you, and they struggle with your absence.
35You have told Mikayla how distressing it is for you to miss the milestones of your children’s lives, and of your regret for putting her and the children through this. This has been made harder for all of you due to the difficulties of having in-person visits.
36Mikayla says and I think this is accurate, that your behaviour on this night was influenced by others, and acting without thinking about the long-term consequences and impact that your decisions would have.
37Mikayla provided an updated letter for the further plea hearing today. She set out the many difficulties she is facing whilst you are in custody. The financial burden falling on her is significant. She has the care of two young children, who miss you and are suffering distress in your absence. Treatment is difficult to obtain for her and your daughter. She fears that if you spend further time in custody she will need to sell the family property as she cannot meet the mortgage payments.[8]
[8]Letter from M Wellard dated 23 August 2023.
Bugmy
38Your lawyer characterised your upbringing as one of extreme instability, dysfunction and disruption and submitted that the principles in Bugmy were enlivened, significantly reducing your culpability. She pointed to the references from your partner, her mother and your uncle to support this characterisation of your childhood but she did not suggest that there was a causal nexus between the conflictual relationship with your mother, the break-up of your parents’ marriage and the driving on this occasion.
39The High Court has explained that there are two ways in which childhood deprivation can be relevant to sentence. The first, and more general way, was expressed as follows: [9]
'The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in this way.'
…
'The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of appropriate sentence, notwithstanding that the person has a long history of offending'
[9]Bugmy v The Queen (2013) 249 CLR 571 [40], [43].
40The second way is described as:[10]
'An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.'
[10]Ibid [44].
41As I said during the plea hearing, I do not accept that the circumstances of your childhood can properly be described as being of 'extreme instability, dysfunction and disruption'. I accept that your childhood was far from ideal, and your mother’s behaviour was undermining and unkind. I accept that this will have undermined your sense of self-worth. You suffered from ADHD, ODD and ASD, and also anxiety, and your behaviour was difficult and conflictual.
42On the other hand, you were provided with various supports at school, your ADHD was treated and efforts were made to assist you. You moved out of mother’s home at 15 or 16 and formed a positive and supportive relationship with your partner. Despite your mother’s negative predictions, you found work and became a valued and long-term employee.
43Your personal circumstances are, of course, relevant to the sentencing discretion, but I do not accept that your history gives rise to mitigation of your culpability in accordance with either approach in Bugmy.
44You do appear to have not learnt from past court appearances to reconsider your reckless driving. This appears to me to be linked to your immaturity and possibly your mental disorders, rather than your childhood.
Remand
45You have used your time in custody, since May 2022, to do a number of courses, including horticulture, OH&S, and food handling. You have worked whilst in custody, and have taken to the gym.
46Your time on remand has been made harder by the lack of contact with your family, who have been unable to visit very often. The time to travel has been difficult for your partner, and the children find it distressing to visit you and then leave without you.
47Whilst the impact of the pandemic has been decreasing in the community since you have been on remand, I understand that there are still lockdowns and some issues related to the pandemic for those who are in custody.
48More recently, since the last court date, you broke your wrist, playing footy. Since then you have been moved several times, and taken to St Vincent’s Hospital twice for surgery which was then not carried out. You are anticipating a further visit to that hospital for surgery again to be considered. You were held in isolation several times, including a period of quarantine when you contracted COVID-19. Your ability to talk to your family was reduced in that time. When you returned to your placement at Marngoneet your personal effects were missing.
Prior and Subsequent Convictions
49You have relevant prior court matters. It appears that in May 2015 you were sentenced to a Community Correction Order without conviction for offences of reckless conduct endangering serious injury and failing to stop on police request.
50You had been observed driving at a fast rate down Wyndham Street, in Shepparton. Ms Wellard was a passenger in the car, which was registered in her name. The police pursued you and you overtook a civilian vehicle, at speed, striking it and causing it to spin. The pursuing police saw the collision and followed you, as you drove at high speed trying to escape. You received a six month Community Correction Order without conviction for this offending.
51
You were on bail at the time of committing these offences for which you are now to be sentenced. Those bail offences were alleged to have been committed on
24 September 2021, but it appears that those charges against you did not lead to any finding of guilt or penalty.
52You had also committed other offences which had not been finalised at the time of this offending. Those offences had been committed in 2018, 2019 and 2021. I will summarise them in a moment. The offending in August 2019 also related to loss of traction and dangerous driving, in the centre of Bendigo.
53You were sentenced in 2015 in respect to the 2014 offending. You were also sentenced and again placed on a Community Correction Order for failing to stop after the collision.
54On 23 May 2017 you were sentenced at Echuca Magistrates' Court for driving a vehicle causing a loss of traction. You were ordered to complete a safe driving program and fined $800 for that offence and also for being a P plater driving a prohibited vehicle.
Totality
55The principle of totality applies to your case in two ways. The first relates to the fact that you are facing multiple charges committed on the same evening. I must ensure that the total sentence imposed is appropriate to the criminality of this group of offences, and so I will be ordering a degree of cumulation between the charges.
56The second way in which totality applies is in respect to the time you have spent on remand since your arrest, which cannot be counted as pre-sentence detention. You were remanded in custody on 14 May 2022. You indicated you would plead guilty in September 2022, and your matter was booked into the Bendigo circuit but not reached until March 2023 when it was transferred to Ballarat.
57On 22 December 2022 you were sentenced to 12 months' imprisonment, with a non-parole period of six months for the following matters:
§There was offending on 16 Oct 2018 – the police summary states that you and an associate cut through a fence of a car dealership in Epsom, where you and your associate smashed the windows of two cars, and rummaged through them. You stole tools, and wheels from a Mercedes in the car yard.
§There was offending on 3 August 2019 - you were in Bendigo. At around 8.40 pm you drove very fast through the roundabout at the corner of Williamson and Queen Streets, intentionally losing traction with your rear wheels. You sped through the intersection of Mitchell and Wills Street, and did a burn-out, so that your vehicle did a 180 degree turn. You narrowly missed colliding with another car travelling through the intersection and there were numerous other cars around. You accelerated causing smoke to come from your wheels and took off down Mitchell Street. When the police tried to pull you over some time later you reversed up the ramp of the Coles Car park, at speed, and then you ran away.
§And there was offending from 21 Feb 2021 – the summary sets out that you got involved in a punch up in the early hours of Sunday 21 February 2021. The police summary states that you pulled one of the people to the ground and punched him around five times to the head, and after you had been pulled away, you kicked him to the head and then punched him around seven more times.
58You were sentenced for that group of offending to 12 months' imprisonment, 233 days of presentence detention declared, which was the time that you had been on remand since 14 May. That sentence expired on 19 March 2023. You are entitled to presentence detention from that day, which is 157 days, not including today.
59I take into account in mitigation of your sentence that you have been on remand for these offences since May 2022. It is likely that if you had been sentenced for all of these matters at once, there would have been a degree of concurrency between the various matters. On the other hand, there would have to have been some cumulation between this and the other charges – the offences before me were committed nearly three years after the other driving offences in Bendigo. Furthermore, the offending in February 2021 was serious and of a quite different character to this offending.
60I also take into account that you lost the opportunity of parole on those December sentences and furthermore, I take into account a different aspect of delay, in addition to the PSD, which is that these matters have been hanging over your head for some time through no fault of your own and that you have undoubtedly been very worried about the outcome during that time.
61The application of the principle of totality does not lead to a numerical reduction equivalent to the time on remand, but it will significantly reduce the individual sentences, and thus the total effective sentences which I will impose.
Plea of Guilty & Remorse
62You indicated you would plead guilty at the committal mention stage. By doing so you have saved the court and the prosecution significant time and effort. This gives rise to significant mitigation of your sentence. I note that by the time you entered your plea you had been on remand for around four months.
63There is some additional mitigation associated with your plea because of the ongoing impact of the pandemic on the court lists.
64I accept that you are very sorry, now, for your behaviour. The warning that Mikayla has given you about staying out of trouble should act as a strong deterrent on you from behaving in such a childish way in the future. Your uncle says that you have thought about things and that you know you did the wrong thing. I would think that hearing about the difficulties that your partner and children are facing, and being apart from them would make you feel most regretful for your behaviour.
Prospects of rehabilitation
65Your counsel submitted that this period of imprisonment was your first and has had a sobering effect on you. It is concerning to me that your past court appearances and penalties did not seem to deter you from driving in this way. You knew you were going to lose your driver’s licence at the time of this offending and that also did not bring home to you that you should avoid engaging in reckless or dangerous driving.
66Furthermore, you were 27 years old. You had a partner and children and the normal obligations of being a father and a parent.
67Whilst it is to be hoped that you have finally realised that conduct of this type is going to get you in trouble, with consequences not only for yourself but for your family, I consider that your prospects of rehabilitation are, at best, reasonable.
68Deterring you from committing further offences, by bringing home to you the serious consequences of such behaviour, is an important sentencing consideration.
Parity - Co-Accused dispositions
69There were two people in the car with you, at the time of this offending. Mr Dobson at the time was 22 years old. He was not sentenced for any driving related offending connected with this night. The other passenger, Mr Tonks, was sentenced on a charge of reckless conduct endangering serious injury – and he received a 10 month Community Correction Order with conviction.
70
Your situation is clearly different to Mr Tonks. You were the driver, whereas
Mr Tonks held the flag out of the rear window of the car. He was 19 at the time and you were 27. You are to be sentenced for more serious offences than
Mr Tonks. I am unaware of his history and circumstances, but it is likely that his youth was a relevant sentencing consideration.
Other Sentencing Factors
Gravity of the Offending
71I accept the prosecutor’s submission that whatever your intention when you drove to Bendigo, from the time you left the nightclub, after being inside for only a few minutes, your intention was to engage in the loss of traction driving.
72It is clear from the footage that you deliberately drove close to the police vehicle and in a manner which was very likely to strike it. Although I do not think you intended to hit the police car, it was a very risky manoeuvre. You appear to be taunting the police in this conduct, and showing off to the observers. The charge is a rolled up charge of recklessly exposing both the police officers in the vehicle to risk of their safety. In this case your recklessness was very high, as was the risk to the safety of the police officers. The charge is the aggravated offence because your driving damaged the police car.
73Charge 2 also involved a high degree of recklessness. There were people on the street, near the parked cars and on the roadway. Whilst it is the case that they were a receptive audience for your immature and reckless behaviour, your driving was intended to spin and drift your car, exposing these people to a risk of serious injury or death.
74
Whilst I agree with your partner’s characterisation of your behaviour on this night in that you were acting without thinking about the long-term consequences and impact your decisions would have, and you were acting under the encouragement of others, I do not consider this reduces your culpability. You were at that time
27 years old. You had two children, a mortgage, a partner and a job. Your behaviour was very immature.
75Charge 5, dangerous driving, involved a high degree of dangerousness. Your car had one blown wheel, which must have affected its handling. You drove at speed, through a red light, and performed another burnout at a roundabout in central Bendigo. In the course of this driving you overtook other cars on the road.
76Regarding Charge 8, you told the police that you were on a New South Wales driver’s licence, and that you were of the belief that in the course of proceedings on foot at the time you would lose that licence. It is not clear to me whether the proceedings to which you referred were the matters for which you were on bail or the other matters for which you were sentenced in December 2022.
General Deterrence, Denunciation and Punishment
77The sentences I impose must also have regard to the principles of general deterrence, denunciation and just punishment. The sentences I impose should send a message to anyone thinking of engaging in similar conduct that they can and are likely to receive significant penalties for such offending.
78The need to protect the community, including police officers whose duty it is to uphold the law, from conduct such as yours is also an important factor.
79Furthermore, your driving included a component of showing off to the observers. Some were filming it and I was told that there were social media posts. The sentences I will impose are intended to signal to people who think that this type of driving is fun or exciting that there are very real and serious consequences, and to denounce such conduct.
Section 5(2H)
80Charge 1 is a category 2 offence under the Sentencing Act. That means I must impose a term of imprisonment, which is not combined with a CCO, unless one or more of the exceptions under s5(2H) of the Sentencing Act applies.
81Whilst your counsel submitted that your diagnoses of ADHD and Autism Spectrum Disorder were mental illnesses within the definition that applied under s5(2H), she accepted that absent an expert report she could not submit that the exception under s5(2H)(c) was made out.
82She did rely on subparagraph (e) that is that there are substantial and compelling circumstances that are exceptional and rare and that justify imposing a sentence of imprisonment combined with a CCO.[11]
[11]It is not suggested that other sentence types under Division 2 of Part 3 were relevant.
83When deciding whether the exception under (e) applies, I am required to evaluate all the material before me. The test of 'exceptional and rare' is stringent. The circumstances must not only be powerful, but also wholly outside the circumstances generally seen in offending of this kind. I must consider first if there are substantial and compelling circumstances, and if so, whether they are also exceptional and rare.[12]
[12]DPP v Lombardo [2022] VSCA 204 [66]-[67].
84In DPP v Lombardo the court said:
'the degree of difficulty in satisfying the exception may vary according to which offence is under consideration. For example, both culpable driving causing death and dangerous driving causing death are category 2 offences, but the former offence is, by definition, much more serious than the latter.” [13]
[13]Ibid, 64.
…
'First, the court must identify whether there are "substantial and compelling circumstance". In that context, "substantial and compelling" means that the circumstances are weighty and forceful or powerful. The issue is whether the circumstances are substantial and compelling so as to justify not imposing a custodial sentence. That is the criterion by which the substance and compulsive force of the circumstances are to be assessed.'[14]
[14]Ibid, 66.
85Section 5(2HC) and (2I) require me to have regard to a range of other factors including 'whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.'[15]
[15]Sentencing Act 1991 (Vic), s 5(2I)(b).
86The combination of factors relied upon by your lawyer were:
(a) Your previously diagnosed conditions of ADHD and Autism Spectrum Disorder;
(b) The impact of those conditions on your schooling;
(c) That despite your difficulties with literacy you have found and kept work;
(d) Your childhood exposure to your mother’s mental health issues and alcohol abuse;
(e) That you have not previously been required to serve any prison sentence which is relevant to the deterrent effect of the time you have already spent in custody for this and other matters;
(f) Your participation in programs and work whilst in custody;
(g) The impact of your arrest and incarceration on your partner and children, and your concern about their welfare;
(h) The limited contact you have had with your family on remand;
(i) The additional burden of imprisonment due to the pandemic; and
(j) Totality.
87You do not bear any onus in establishing that this exception applies.
88I do not consider that the exception under s5(2H)(e) applies in your case. The combination of factors is not substantial and compelling, and even if they were, they are not exceptional and rare so as to justify making an order other than required by s5(2H). Having regard to your personal circumstances and the circumstances of the offending, and giving greater weight to the nature and gravity of the offending, I consider that a sentence other than a gaol term with a non-parole period would be wholly inadequate.
89As I have noted, whilst I accept your childhood was marred by your parents’ break up, by your mother’s issues, and by your own ADHD, ASD and ODD, I do not consider that your childhood was one of 'extreme instability, dysfunction and disruption', as characterised by your counsel. Despite your mother, despite your ADHD, despite the Autism Spectrum Disorder, you have formed a strong relationship with your partner of many years, you have held a job for years, you and your partner saved for and purchased a property and you have been helping with raising your two children, and you have helped the boy who has ADHD.
90Secondly, even if your combination of circumstances were substantial and compelling, which I do not accept, they are not exceptional and rare justifying the imposition of a different outcome to gaol not combined with a CCO. In making this assessment I have had regard to all the factors. General deterrence, and denunciation are significant sentencing factors, on basic principles, for this type of offending and I am required to give them more weight by virtue of s5(2HC)(a).
91The strongest factor in mitigation in sentencing you is the approximately 15 months you have spent on remand, which cannot be counted as presentence detention on these charges. This is only one factor however, and in view of the gravity of this offending and the need for specific and general deterrence, I consider that a sentence involving a CCO combined with gaol would be manifestly inadequate.
92Whilst I had you assessed for a CCO, as I explained at that time, this was to ensure that I was informed about your suitability, not because I had formed a concluded view about what type of sentence to impose. You were assessed as suitable, but for the reasons I have given such a sentence cannot be imposed.
Comparable Cases
93Defence counsel referred me to five other cases where the aggravated offence of recklessly exposing emergency workers on duty to a risk by driving was charged. Three were decisions of the Court of Appeal and two sentences at first instance.
94Each of those cases involved an offender trying to escape the police and driving in a way that damaged a police vehicle, and in one case causing injury to a police officer. The most recent of the Court of Appeal decisions was McKay v The King (No 2) [2023] VSCA 8. In that case a sentence of 3 years for such a charge was reduced to 2 years. Whilst the charge was rolled up to cover four police officers placed at risk, the driving was very slow. In each case the offending was reactive, being an attempt to avoid being arrested.
95The distinguishing characteristic between your driving and in the cases to which I was referred was that you deliberately drove behind the police vehicle, around to the front of it and then turned and clipped the front of it. As I have said your behaviour appears to have been intended to taunt the police officers. This may have been spur of the moment when you saw the police but it was not reactive to fear or a desire to escape.
96The prosecutor provided summaries from the Victorian Sentencing manual to which I have also had regard.[16] Some of the cases summarised were in the list provided by defence counsel and some involved different charges to those before me.
[16]Victorian Sentencing Manual 2.5 Exposing an emergency worker to risk by driving.
97Mr Hall, would you please stand?
98On Charge 1, the aggravated offence of recklessly exposing an emergency worker to risk by driving, the sentence is 18 months' imprisonment.
99On Charge 2, reckless conduct endangering life, the sentence is 12 months' imprisonment.
100On the summary charge of dangerous driving, the sentence is six months' imprisonment.
101Summary Charge 8, committing an indictable offence on bail, the sentence is one month imprisonment.
102The sentence on Charge 1 is the base. Four months of the sentence on Charge 2, three months of the sentence on summary Charge 5, and one month of the sentence on summary Charge 8, are to be served cumulatively on each other and on the sentence of Charge 1.
103That leads to a total effective sentence of 26 months. I set a non-parole period of 13 months. You may sit down.
Other Orders
104On Charge 1, I am required to cancel your driver’s licence if you have one, and disqualify you from obtaining a licence for not less than 2 years. On the charge of dangerous driving there is a minimum disqualification period of 6 months.
105I will impose those minimum disqualification periods, which run concurrently from today.
106Pursuant to s6AAA of the Sentencing Act I state that if you had not pleaded guilty I would have sentenced you to 4 years' imprisonment with a non-parole period of two and a half years. If I can just be given the PSD figure again?
107MS STRUGNELL: It is 157 days.
108HER HONOUR: I declare that you have already served 157 days as pre-sentence detention and I direct that be entered into the records of the court. Mr Grant, anything else?
109MR GRANT: No, thank you, Your Honour.
110HER HONOUR: Ms Strugnell?
111MS STRUGNELL: Nothing further, Your Honour.
112HER HONOUR: Just to repeat, Mr Hall, the sentence is 26 months with a non‑parole period of 13 months, and you get credit for 157 days as pre-sentence detention.
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