Director of Public Prosecutions v Harris

[2019] VCC 230

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01604

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVE HARRIS

---

JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 March 2019
CASE MAY BE CITED AS:	DPP v HARRIS
MEDIUM NEUTRAL CITATION:	[2019] VCC 230

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Stougiannos
For the Accused	Mr R. Alexander

HIS HONOUR:

1Steve Harris, you have pleaded guilty to a number of charges relating to events which took place in February and March of 2018.  On the afternoon of 16 February 2018, you attended the Haddon general store.  You were driving a Holden Commodore vehicle, QDF 163.  A witness wrote down the registration number of the vehicle.

2The Commodore was stolen in the early hours of that day from Wendouree when the owner of the car was awoken by the presence of two males inside his house.  You stole the keys to the Commodore and that is Charge 10 of theft.  The value of the car was about $2000 and it has never been recovered.

3On 12 March 2018, you returned to the Haddon general store in a maroon coloured Holden Commodore.  There was no registration plate on the front of the vehicle, and on the rear was displayed a registration plate showing SLJ 782.  This was a stolen number plate and was issued for a 2002 Commodore, black in colour.  That is Charge 11 of handling stolen goods.

4At about 1:50 am on 17 March 2018, police responded to reports of suspicious loitering in Redan.  You and a second male were standing next to a maroon Commodore.  Police spoke to you and you denied any knowledge of the vehicle and you were allowed to leave.  That car had an incorrect number plate attached bearing number ZGM 796.  At the time the police questioned you about the car, it had not yet been reported as stolen.

5Police then searched the vehicle and various items were located that were suspected to be stolen, including an assortment of power tools, hand tools, a bottle of aftershave, a whiskey bottle, assorted other items, and a registration plate ZGM 796.  Also found inside the vehicle was a resume for you on a notepad.  This is related summary offence 18, dealing with property suspected to be proceeds of crime.

6Some time on either 21 March or 22 March 2018, a 1997 Holden Rodeo utility motor vehicle, and an eight-foot by five-foot box trailer was stolen from
Creek Street, Miners Rest.  The value of both was about $6000.  On 23 March, you were located in this vehicle and arrested, Charge 2 on the indictment of theft.

7The vehicle was distinctive in a number of ways, including the fact that it had two large spotlights on its roof.  You later disposed of the trailer in a paddock in Ballarat.  On 22 March 2018, at about 10:00 pm, you drove the Rodeo to the APCO service station in Ballarat and placed about $30 of fuel in the vehicle.

8Footage shows you sitting in the driver's seat of the vehicle and a co-accused exit from the rear passenger seat, who pays for the fuel, and enters the vehicle again, sitting in the rear passenger seat.  Another co-accused is seated in the front passenger seat.  As the vehicle leaves the service station, the footage captures the tray of the utility to be empty.  Some hours later, the tray of the ute contains a range of items, suspected to be stolen.

9Later that night, you drove the Rodeo into a business known as Victoria Ice.  The vehicle was used to smash into the front glass door and windows of that premises.  You then ransacked the office, stealing items including chequebooks, receipts, and deposit books.  These are Charges 3 and 4 on the indictment, burglary and theft.  A nearby business had CCTV that depicts these events.

10At approximately 12:15 am on the 23rd, you were driving the Rodeo in Ballarat when you were observed by Sergeant Leishman.  You saw police and commenced driving erratically.  You crossed onto the interred side of the road on several occasions within a short period of time.  Police then withdrew from the attempt to intercept you, due to the extreme danger presented by your actions. This is Charge 6 on the indictment, dangerous of negligent driving whilst pursued by police and the related summary offence 8, driving whilst disqualified.

11The police airwing located you in the vehicle shortly after the sergeant withdrew from the attempted intercept and you were kept under observation for a period.  You were eventually forced by police to stop the vehicle and you were arrested.  In the time that the police airwing maintained observations, you drove through Ballarat, the Canadian State Forest, towns to the east of Ballarat, and then back into Ballarat.

12You were in possession of a police scanner and were taking steps to avoid apprehension.  Your driving was captured on video footage some two and a half hours in length.  The dangerous or negligent conduct engaged by you following the attempted intercept by the Sergeant until your arrest, can be summarised this way chronologically from about 12:38 am.  I will not go through each of those times which were summarised with some detail in the prosecution summary, which will be retained, having been exhibited upon the brief.

13You drove on Navigators Rd on the incorrect side of the road, and then commenced what is known as a "burnout" outside a private residence, before turning back to Navigators Road.  You cut across a blind corner, driving on Warrenheip Road shortly after passing a vehicle travelling in the opposite direction.  You drove along the gravel surface track, beside a railway line, simultaneously as a Ballarat-bound train was travelling along the line.

14A co-accused, Dylan Scutcheon, who was seated in the rear passenger seat, hopped out of the vehicle, cut a wire fence gate, thereby allowing you to drive into the bush where the police were nearby.  You drove through a farm gate along the railway track and into paddocks.  You then reversed the Holden Rodeo into another farm gate to force it open.  You crashed through a temporary road barrier on Butter Factory Rd.  The temporary barrier was in place where a bridge was under construction.

15You then drove onto a property at Rocklyn where your co-accused attempted to steal a Mitsubishi motor vehicle, Charge 5 of attempted theft.  As you approached Rocklyn Rd, you swerved from one side of the road to the other at low speed.  On sighting the police, deploying stop sticks, you drove
off-road in order to avoid them.

16You then drove down Dean-Newlyn Rd serving from one side of the road to the other, turning south into Ballarat-Daylesford Rd, and drive on the grass verge for between 100 to 200 metres, before you drove on the wrong side of the road, which section of road contained blind corners.  At the time, you were being followed by three police vehicles and the pursuit included the police critical incident response team vehicle.

17The people helicopter lit up the vehicle then being driven by you.  You swerved dangerously onto the incorrect side of the road, entered the roundabout at Pootilla on the incorrect side, and after you exited that, you continued driving, swerving from side to side.  You almost collided with a truck on the
Ballarat-Daylesford Rd.  A short time later, you reached the outskirts of Ballarat, and continued driving on the incorrect side of the road.

18You travelled east into oncoming traffic.  Cars slowed in order to avoid a collision, and you drove into side streets, continuously driving from side to side.  You drove onto the incorrect side at Drummond St and Skipton St in Ballarat, in order to avoid traffic control signals.  Major intersection traffic was in fact coming from each of the four different directions.  You drove past a north-bound vehicle on the wrong side of the road, and when you reached Rubicon St, you negotiated a blind corner on the wrong side of the road and headed west on Rubicon.

19The remainder of the summary gives some ongoing description as to your driving that morning.  While the events unfolded, various items were thrown from the vehicle.  A number of items were recovered by police, including three Commonwealth bank deposit books, a Big Wheels invoice, and a photocopy of a signed cheque stolen from Victoria Ice.

20At 3:46 am, you drove west along Remembrance Drive in Lucas. You overtook a Ford Sedan being driven by Mr Singh.  You pulled your vehicle in front of his vehicle and stopped abruptly, forcing him to bring his vehicle to a stop.  He was frightened by these actions and locked the car.  You remained in the Holden Rodeo, while your co-accused exited the car, wielding a pole and approached Singh.

21He yelled at Singh to get out of the car a number of times.  He then struck the driver's side window of his vehicle three or four times, breaking the window.  He again told Singh to get out of the vehicle.  At that point in time, the driver observed police coming from behind with their emergency lights, and at that moment your co-accused ran back to the Holden Rodeo, and hopped back in. That was Charge 1 on the indictment, attempted aggravated carjacking.

22Due to the extolation of your actions, a police pursuit was called.  Police followed with lights and sirens activated, and the pursuit continues, as I have said, for about ten minutes, until police from the critical incident response team had an opportunity to safely stop you at 3.58 in Webb Rd in Bonshaw.

23Your vehicle was disabled by forcing it into a residential fence.  Senior Constable Wattie of the critical incident response team went to the driver's door.  You were in the driver's seat.  He attempted to remove you from the vehicle, but he could not do so, as you were holding fast in the seat and steering wheel.  You then lashed out to him, punching him in the legs several times.

24Another member of the incident response team deployed a taser into your back.  They then removed you and placed you on the ground.  After the taser cycle was completed, you again resisted while police were endeavouring to place handcuffs on you.  Eventually, you were subdued sufficiently to be secured with handcuffs.  The front passenger in the Rodeo was removed, arrested and identified as one Nikita Thomas.  The rear seat passenger was removed, arrested and identified as one Dylan Skutcheon.

25You were then searched; a metal container was found in a pocket of your shorts containing 3.2 grams of methylamphetamine, this being Charge 8 possess a drug of dependence.  The Rodeo was later towed to the police station. Both registration plates had been altered, and that is related summary offence 24, fraudulently altering a number plate.

26Inside the vehicle, the police found a number of items, including receipts for fuel purchases, a large diesel tank, two electric guitars, power tools, a laptop, a speaker, and a police scanner.  Related summary offence 7, dealing with property suspected to be proceeds of crime.  Police also found some cannabis; Charge 7, possession of a drug of dependence.

27Two mobile phones were found in the possession of co-accused Thomas who said you were the owner of those phones.  The Apple iPhone was analysed that showed communications between you and Thomas.  You had stated that you were in a dodgy car and you could not leave the ute, unless you had a place to hide it.  In your mobile telephone was a photograph of a black utility, stolen together with a wallet back in March, and that is Charge 9 of theft.

28Thomas was also in possession of a handbag that contained a number of items and nominated you as the owner of those items, stating you had given her those items during the period that police had you under observation during the pursuit.  Following the collision that you were involved in, upon our arrest, you were taken to the Ballarat base hospital, where a sample of your blood was taken.  Analysis of the blood detected the presence of methylamphetamine; related summary offence Charge 21, driving while impaired by a drug.

29At the time that you drove to the Haddon General store on 16 February and on 12 March, you were disqualified; related summary offence Charges 25 and 26.

30You were remanded into custody on 23 March 2018.  On 2 February, police had intercepted you in a Ford Focus in Ballarat East.  You were identified as the passenger in the front seat.  The vehicle was searched and a backpack in the boot of the car, the police located 41 ammunition cartridges, .22 in calibre, and 7 by 30 cartridge ammunitions, 30 in number.  You do not hold a firearms license, and you were not licensed to have ammunition.  When asked for an explanation, you stated that it was not yours, that someone had left it at your place, and you were taking it back to a friend who had left it at your place.

31You admitted you did not have a lawful excuse for being in possession of ammunition, given that you did not have a license, and you were a prohibited person.  That is the unrelated summary offence, being in possession of ammunition without a license.

32You were taken into custody on 23 March 2018 and by today's date, you will have served on my reckoning 345 days of pre-sentence detention. 

33No victim impact statement was received by the victim of the carjacking; however, the material reflects that this would have been a very frightening experience, and he asserts as to having been terrorised by it.  I take this impact into account.

34The offending is very serious.  The most serious offence is that of the attempted aggravated carjacking, at a time when you knew your co-offender had with him an offensive weapon, the metal pole.  The offence carries a maximum penalty of twenty years.  The dishonesty offences carry ten and fifteen years penalties and maximums, and the dangerous driving while being pursued by police, three years.

35In my view, the circumstances of the offending throughout this criminal rampage places your conduct at a level of high culpability.  Objectively, the attempted carjacking and driving were very grave and dangerous, exposing not only
Mr Singh the driver, but your passengers, yourself, and those innocent drivers on the road upon which you travelled, as well as police who were endeavouring to apprehend you.  This was appalling behaviour.

36It is said on your plea that there was some features which I should consider as reducing the dangers potentially created by you.  The pursuit occurred at times in less populated areas.  It took place at night.  It involved at times, a low speed.  I accept that these features were involved from time to time.  I do not accept that this diminishes your overall culpability, or that the risk of death or serious injury was greatly diminished, to downgrade the conduct into a significantly lesser risk. The risk remained substantial

37It was put that you were a secondary offender in the attempted carjacking.  In my view, depending on current accessorial liability, it would suffice to render you a principle by way of complicity.  You were much older than your 17 co-accused who was dealt with in the Children's Court.  Your driving facilitated and assisted your accomplice.  It was said your state was one affected by drugs and the attempts bore all the hallmarks of a spontaneous, opportunistic action prompted by desperation.

38That may have been so, and you may have been responding to your predicament at the time.  It was a predicament, however, of your own making.  The attempt may have lacked the further aggravation of having been
pre-mediated.  But it was nevertheless carried out in a response to a situation your own conduct had created and involved a weapon.

39You are 29 years old.  I take your plea into account.  After your arrest in March of last year, after which you were remanded in custody, you pleaded guilty at the committal mention in August 2018.  This was an early plea and will attract a reduction in your sentence according to law.  I accept that it is a plea accompanied by some remorse, which you have expressed to others, and which your plea tends to indicate.

40The plea has utilitarian value which is inherent in a course which avoids a criminal trial.  I take those matters of your plea into account.  I take your personal circumstances into account.  You are the son of separated parents.  You have an older sister.  You report a good relationship with both parents.  They separated when you were 23, but you had left the family home at age 19, although you have returned on occasions.  Your mother now works in age care, and your father works for a farming company.

41At age 15, you left school to complete a plumbing apprenticeship, which you did not complete.  You were lured away from that prospectively excellent trade by more money in labouring work for the railways.  You worked there for a year, before a serious shoulder injury at work meant you were placed on WorkCover for a further 12 months.  Then you had to take up office work, and returned to the railways eventually, before moving on.  Your work has been sporadic and inconsistent since. 

42Full shoulder reconstruction at age 21 as a result of this work injury, exacerbated drug use which you had begun at age 18.  On WorkCover, recovering slowly, you became depressed and you choose to mire yourself in the drug sub-culture commencing with recreational ice use which became an addiction.  The years leading up to these offences can be seen to have been blighted by drug use.  By the time of the offending, you had no fixed address and no work, and you had accumulated a formidable list of prior criminal convictions, some 17 pages long.

43Your first appearance was at age 19 in 2009 for recklessly cause injury and assault.  A suspended sentence was imposed.  A year later, you were placed on a bond for driving matters.  By 2013 and 2014, offences had escalated in frequency and seriousness, continuing into 2015 and 2016.  In 2013, you were convicted and fined for trafficking in speed, use and possess speed.

44In 2014, you were sentenced for theft of a car, theft, burglary, handling, driving offences, and placed on a community corrections order.  In those offences, it is notable that it included dangerous driving while pursued by police.  The sentence in March 2014 which dealt with those matters, also imposed a wholly suspended sentences which you then breached, and it was restored in June 2014.

45On that occasion, you were also sentenced to 12 months' imprisonment for drug offences and false imprisonment.  In December 2015, you received a
five-month term and a community corrections order for 18 months for arson, theft, firearms, and drug offences, amongst others.  In September 2016, you were again before the court on numerous charges including aggravated burglary, theft, drug driving, and dishonesty offences, escaping the custody of police, recklessly cause injury, and fail to stop a motor vehicle on request, and reckless conduct endangering serious injury.

46Imprisonment was imposed of some 19 months, with nine months non-parole period.  This was a substantial criminal history, and I noted not because you are to be punished again for any of the offences, but it must render your prospects for rehabilitation very guarded.

47I received a report from Dr Cunningham, a forensic psychologist, who told him that you are motivated to cease use of drugs, and to this end, you have completed a 44 hour drug course while in custody.  I have also seen other certificates of courses you have completed while on remand, and I will take these into account.  They are of a general, educational, and vocational nature.

48Your performance on psychometric testing was not consistent with an intellectual disability.  But rather, with a persistent depressive disorder, characterised by depressed mood and feelings of worthlessness.  You told
Mr Cunningham that your relationship with a woman produced a son who is now four years of age.  However, his mother has lost custody of him, and this is said to have prompted a change or prompting in your regaining the possibility of caring again for your son in the future.

49I am told you will live with your father when released, and you appear to have some opportunity for accommodation and employment as a landscape gardener with a friend.  There can be little doubt that ceasing drug use, moving away from the influence of drug peers, maintaining stability at work and accommodation, would be the only way for you to have any chance to regain your son, to rehabilitate yourself.

50I also received a letter of support from a social worker, Shae Eva.  She confirms your feelings of remorse and motivation to rehabilitate and has offered to help you upon release.  These are potentially positive and stabilising matters which may assist you, but much will depend on your commitment to achieving your own reclamation.

51It was submitted I should use your drug addiction as a mitigating factor.  I accept this proposition, but only in part; though clearly your addiction will not have assisted to regain employment and give you some financial security, it rendered you more liable to a lack of clear thinking.  In the end, your addiction is longstanding.  You were well aware of the type of behaviour which use of ice had led you to in the past and again would lead you to.  You had been these offences already been imprisoned three times.  Yet, these sanctions had not deterred you and encouraged a different path.

52It is not, as was stated, that the addiction was a motivating factor to the offending.  Such link to the commission of the offences was not established on the balance of probabilities in my view.  Your addiction was simply a significant factor in your circumstances, which I will take into account.  Please stand.

53On attempted aggravated carjacking with an offensive weapon, you are convicted and sentenced to two years' imprisonment.  On the theft, you are convicted and sentenced for nine months' imprisonment.  On the burglary, Charge 3, you are convicted to 12 months' imprisonment.  Charge 4 of theft, you are convicted and sentenced to nine months' imprisonment.

54On the attempted theft, you are convicted and sentenced to six months' imprisonment; that is Charge 5.  On the dangerous driving, you are convicted and sentenced to 12 months' imprisonment.  On possession of drug of dependence cannabis, you are fined $200.  On the possession of methylamphetamine, you are convicted and fined $200.  On Charge 9, the theft, you are convicted and sentenced to nine months' imprisonment.  On Charge 10 of theft, you are convicted and sentenced to 12 months' imprisonment.  On Charge 11, handle stolen goods, you are convicted and sentenced to
six months' imprisonment.

55On the unrelated summary offence of possess ammunition, you are convicted and sentenced to three months' imprisonment.  On the related summary offence of dealing with proceeds of crime, you are convicted and sentenced to four months' imprisonment.  On drive whilst disqualified, Charge 8, two months' imprisonment.  On Charge 18 of dealing with proceeds of crime, four months' imprisonment.  On Charge 21, driving whilst impaired by drug, two months' imprisonment.  On Charge 24, fraudulently alter number plates, one-month imprisonment, and on 25 and 26, drive while disqualified, two months on each.

56I order that it is the sentence on Charge 1 will be the base sentence.  I order that six months on Charge 6, four months on Charge 3, three months on
Charge 2, two months on Charge 4, one month on Charge 5, one month on Charge 9, three months on Charge 10, and one months' each on Charge 11, 7, and 18, and one month on the unrelated summary offence be cumulative on Charge 1 and with each other.  The other charges and sentences will all be concurrent sentences.

57That is a total effective sentence of four years.  I order a non-parole period of two years and three months.  But for your plea, I would have sentenced you to five years with a non-parole period of three years.  I declare that you have served 345 days, excluding today as pre-sentence detention, and will note that number in the records of the court.  Pursuant to s.89(3)(c) and s.89A of the Sentencing Act, I cancel all licenses held by you, and disqualify you for a period of four years from today, from driving.  Are there any other ancillary orders?

58MR STOUGIANNOS:  There was some forfeiture orders, Your Honour. I am not sure if that was submitted.

59HIS HONOUR: I will sign them.  Yes, thank you.

60MR ALEXANDER:  As Your Honour pleases.

61HIS HONOUR:  Yes, thank you.  Mr Harris can be removed. Thank you gentlemen.

- - -