Director of Public Prosecutions v Harrison
[2025] VCC 752
•27 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-24-01163
Indictment No. Q10074831
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WYLIE HARRISON |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 20 and 21 May 2025 | |
DATE OF SENTENCE: | 27 May 2025 | |
CASE MAY BE CITED AS: | DPP v Harrison | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 752 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Two charges of theft of petrol – one charge of dangerous driving causing serious injury and one charge of failing to stop after an accident involving a motor vehicle in which a person suffered a serious injury – 51-year-old offender who committed all four offences in February 2019 and then failed to answer his bail until extradited from Western Australia to answer the charges in January 2024, approximately 4 years and 10 months after having committed the offences
Legislation Cited: Sentencing Act 1991, Confiscation Act 1996, Road Safety Act 1986
Cases Cited:Tokay v The Queen [2014] VSCA 285, Akoka v The Queen [2017] VSCA 214
Sentence: 4 years and 9 months’ imprisonment with a non-parole period of 2 years and 9 months – s 6AAA declaration of 7 years’ imprisonment with a non-parole period of 4 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Devlin | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr J Moore (plea) Ms Bridie O’Malley (sentence) | James Dowsley & Associates |
HER HONOUR:
1Wylie Harrison, you have pleaded guilty to two charges of theft of petrol (Charges 1 and 2), each of which carries a maximum penalty of 10 years’ imprisonment; one charge of driving a motor vehicle in a dangerous manner causing serious injury (Charge 3), which carries a maximum penalty of five years’ imprisonment; and one charge of failing to immediately stop as a driver of a vehicle at the scene of an accident involving such motor vehicle in which a person suffered serious injury (Charge 4), which carries a maximum penalty of 10 years’ imprisonment.
2The circumstances of your offending are contained in the Summary of Prosecution Opening for Plea dated 14 May 2025, as amended.[1] The offending conduct occurred over six years ago in February 2019.
[1]Exhibit “A”.
3Charges 1 and 2, theft of petrol, valued at $31.10 and $38.27, respectively, each occurred on 14 February 2019 within approximately 26 minutes of each other. Each of the offences was captured on CCTV footage, and a mobile phone ending in the numbers 603, known to be utilised by you, was registered as being in the areas of the respective service stations at the relevant times.
4On 28 February 2019 at approximately 5.07am, you were driving a white 1993 Mitsubishi Express van, bearing stolen registration plates, east along Footscray Road. After travelling under the Citylink overpass, you made a right-hand turn against a red-turn arrow onto a road which becomes the on-ramp for southbound Citylink traffic. This right-hand turn involved you crossing the other side of Footscray Road, which, at that point, comprised a right-hand turn lane and three lanes for westbound vehicles to travel straight ahead. After crossing those lanes, it also involved a vehicle, like yours, entering the on-ramp, to merge into a single lane with any vehicles which were also entering that ramp after turning left from the westbound side of Footscray Road. This merger occurs a very short distance after crossing the westbound lanes of Footscray Road. While undertaking your turn, your vehicle collided with your victim’s motorcycle as he travelled through the intersection in the westbound lane of Footscray Road which was furthest from the median strip in-between the two sides of Footscray Road. Your victim had a green light as he approached and entered the intersection. The collision caused your victim to suffer serious injuries. This is the offending conduct compromising Charge 3, driving in a dangerous manner causing serious injury.
5The lead-up to the collision is captured on CCTV footage which was tendered at the plea hearing.[2] Upon my viewing of the CCTV footage, what is observable is as follows: a white van is travelling west on Footscray Road in the lane closest to the median strip, that is, to the left of the right-hand turn lane. A dark-coloured sedan is travelling in the lane to the left of the white van some distance behind it, that is, in the middle of the three lanes for traffic to travel straight ahead in a westerly direction. As both these vehicles approach the intersection, they have headlights operating and are seen to stop behind the stop line in compliance with a traffic light which is red for westbound vehicles. A large semi with a long unloaded trailer is seen to turn across the westbound lanes of Footscray Road onto the on-ramp for southbound vehicles on Citylink. As this large vehicle is partway into its turn onto the on-ramp, one can see that the arrow for vehicles, like yours, waiting to turn right, turns from green to orange. This arrow is situated above the circular light which remained green for eastbound traffic on Footscray Road. As the tray of the semi leaves Footscray Road and has passed onto the on-ramp for southbound Citylink traffic, one can see that the right-hand turn arrow applicable to you has turned red. One can also see that the motorcycle ridden by your victim was travelling west in the middle of the three lanes for traffic proceeding straight ahead and, as he approached the intersection, he changed from the middle to the far-left lane, which enabled him to proceed straight ahead without stopping as the light facing him turned to green. As your victim travelled through the intersection, your vehicle is seen to enter the intersection against a red arrow. You then collide with your victim’s motorcycle. It is agreed that the right-hand turn arrow applicable to you had been red for approximately five seconds when the collision occurred.[3]
[2]Exhibit “C”.
[3]Exhibit “A”, page 5, para [22].
6The CCTV footage shows that, as your victim’s motorcycle approaches the intersection, the white van, which is two lanes to the right from your victim and had been stopped at the intersection, crosses the stop line to enter the intersection after the light facing it turns green. Also, the dark-coloured sedan which was in the middle lane crosses the stop line into the intersection. Next, the motorcycle ridden by your victim, proceeds into the intersection, and appears, to be almost across it, when a flash is seen on the upper left-hand side of the screen of the CCTV footage as the collision between your white van and your victim’s motorcycle occurs. This takes place on the south-western edge of the intersection. At this point, both the white van and the dark sedan have fully crossed the stop line into the intersection, with the van just slightly ahead of the dark-coloured sedan.
7What is next seen on the left-hand side of the frame of the CCTV footage is the appearance of the front of your white van with something to its passenger front side, which looks to be your victim’s body and his motorcycle. Your van then travels onto the on-ramp and the body of your victim can be seen under the front passenger corner of your van. Your van becomes fully visible. It is a large van, which is longer than the average sedan-style of vehicle. It has a driver’s door window and two windows along its side. Behind your van, one can see that the white van, which was in the westbound lane of Footscray Road nearest to the median strip, has continued across the intersection. Also, the dark sedan in the lane to its left has progressed fully into the intersection, with its rear just past the stop line, as it comes to a halt. Your van is then seen running over the body of your victim in a jolting movement as your van moves somewhat to its left. The driver’s door of your van is seen to open and the agreed facts are that you peer down.[4] You then reverse, with the driver’s door slightly open, and the body of your victim is visible on the road in front of your van. Meanwhile, the dark sedan has slowly moved across the intersection as though it is about to come to a stop. Your victim can be seen turning or rolling his body from being facedown onto the roadway onto his back. He appears to be wearing a white helmet and can be seen trying to slightly move an arm and a leg. You, having reversed your van, then stop very fleetingly about 2 metres back from the body of your victim, before rapidly accelerating forward and around your victim and leaving the scene. This is the conduct comprising Charge 4, failing to stop.
[4]Exhibit “4”, page 4, para [20].
8As you leave the scene, your victim can be seen clearly on his back on the roadway, appearing to try to move his arm towards his head. His motorcycle can be seen in the background, approximately in the middle of the entry to the slip ramp. It is agreed that, when you collided with your victim’s motorcycle, that caused your victim to be thrown several metres from his motorcycle and you subsequently drove over your victim as he was lying on the ground. The front of your vehicle caught your victim’s motorcycle helmet and, as a result, your victim was dragged several metres by your vehicle.[5] On the CCTV footage, a male person is seen walking to where your victim is lying. He has a mobile phone in his hand and appears to be filming your rapid departure from the scene. Meanwhile, three other vehicles can be seen proceeding through the intersection. Then a second, and a third person, come to assist your victim, whom you had abandoned.
[5]Exhibit “4”, page 4, para [21].
9The charge of dangerous driving is put on the basis of you travelling against a right-hand turn arrow which had been red for approximately five seconds when the collision occurred. The charge of failing to stop is put on the basis that you ought to have known that your victim had suffered a serious injury in the circumstances, particularly as you had manoeuvred your vehicle in such a way as to be able to assess the condition of your victim before you left the scene at a fast rate of speed.
10At approximately 5.23am, police and ambulance arrived at the collision scene and your victim was conveyed to the Royal Melbourne Hospital. As a result of your offending, your victim sustained many injuries to multiple parts of his body: a high-grade (Grade 4) liver laceration, which was extensive; haemorrhaging to the central retroperitoneal area; bleeding into the abdomen; fractures of the right radius and ulnar shaft, with multi-fragmented right ulnar fracture; a dislocated fracture of the left tibial plateau; a minimally-displaced fracture of the breastbone; a pelvic fracture with minimally-displaced left inferior pubic rami fracture; a fracture at L4 level of the spine; a severe posterolateral corner injury with tibiofibular ligament disruption and instability to the left knee; a small right apical pneumothorax; a small collection of blood around the liver and to the pelvis; low haemoglobin levels indicating significant blood loss, and three deep wounds to the left leg and ankle.
11It is apparent from the statement of your victim made to police on 7 March 2019[6] that he was 30 years old and on his way to work on the Westgate Tunnel when you collided with his motorcycle. He was conscious throughout the collision and its aftermath. He told police that your van “came flying around the corner and it ploughed into [him]”. He described getting dragged along, feeling the bitumen on the side of his helmet, and pressure everywhere. He recalls his groin collapsing as though his left-hand side was falling in on his body. He went to move his left knee, but his leg was just flopping around. He knew his arm was gone, because it was bent around the wrong way, and he felt extreme pain everywhere. He was screaming out for the ambulance and was a mess when they arrived, and recalls the ambulance officers telling him to keep sucking on a stick of analgesic, and then being rushed to surgery at the hospital. On the way to the operating theatre his blood pressure fell, resulting in a lot of extra people coming into the room, telling him he had internal bleeding and he said “I was freaking out because they were all there and I was in pain. They rushed me in for surgery”.
[6]Exhibit “D”.
12A report of Dr Jason Schreiber, a forensic physician from the Victorian Institute of Forensic Medicine, dated 27 August 2024,[7] summarises the material from the relevant police, ambulance and medical notes, noting that, when the ambulance arrived, your victim was agitated and complaining of, and writhing, due to pain. He had multiple abrasions and deformities indicating fractures, and his blood pressure was low, with his heart rate elevated, indicating haemodynamic instability. He was administered strong opioid pain relief (fentanyl), and an anaesthetic (ketamine), and taken to hospital under the highest criticality criteria. He was hospitalised on 28 February 2019 until 23 March 2019. He underwent two separate surgical procedures on 28 February 2019, with the second involving multiple different parts of his body. On 5 March 2019, he underwent further surgery involving reduction and internal fixation of his right radius and ulnar fracture and release of a nerve in his right arm. On 8 March 2019, he underwent another specialist orthopaedic surgical procedure for removal of external fixation of the left knee and both a reduction and internal fixation of the left tibia, with insertion of a metal foreign-body plate and screws and fixation devices and use of a bone graft. He also underwent a reconstruction of the outer and rear knee ligament complex with an incision to the knee joint cartilage structure, as well as the release of a left leg nerve.
[7]Exhibit “E”.
13Dr Schreiber describes the significant conservative management undertaken by your victim in relation to his sternal body fracture, pneumothorax, pelvic fracture and fracture of L4. Your victim required administration of general anaesthetics, potent antibiotics, a blood transfusion and multiple radiological investigations. He required long-term rehabilitation, with specialist reviews and an allied support team, including a physiotherapist, occupational therapists, infection control and dietitians, and further treatments which included knee joint surgery on 12 June 2019 and removal of metal hardware to the knee on 29 October 2019. He required potent opioid pain relief medication (Endone), with the potential for addiction, and more potent intravenous antibiotics (meropenem) for twelve weeks, and other antibiotics for eight months. Some ten months after the collision, on 6 January 2020, your victim still had limited knee movement and infection, in his knee, which was continuous and long-lasting.
14The report from Dr Schreiber stated that many of the injuries sustained by your victim could have been life-threatening, had they not been able to be treated. Your victim remains at risk of future revision surgery, as well as non-surgical treatment, such as splinting, and there may be follow-up required. He stated that pain can persist for eight to 12 weeks after an external fracture and there is likely to be persistent pain and instability associated with vertebral fractures in general. He noted that your victim had sustained a high-grade liver injury with an under-the-surface liver segment of four inches extending towards the hilum and that the higher the grade of liver injury, the lower the chances of surviving it. He also noted there is a risk of spontaneous lung collapse with trapped air (pneumothorax) re-occurring after recovery, as the healing tissue may be weaker than the original tissue. He described the emergency laparotomy as being a major opening of the abdominal cavity which, itself, bears a high risk of adverse events, and noted that the blood loss and haemorrhagic shock can adversely impact on the vitality of organs which do not receive sufficient blood, and that such blood loss and low blood pressure can result in damage to the heart. He noted your victim had required a blood transfusion because of the extent of his blood loss due to his injuries. The retroperitoneal bleeding was also potentially life threatening. He noted the significance of many of your victim’s injuries and, in particular, that long-term arm pain, knee pain, lower back pain and pelvic pain would be expected. He noted that, after being in hospital for almost a month, your victim required rehabilitation for almost a year, and required surgeries at least up to eight months after the collision, as well as extensive antibiotic treatments for many months. He stated that, due to the injuries, there is a future risk of bone fractures not healing, ongoing pain, infections, spontaneous lung collapse and psychological sequelae.
15There is no victim impact statement available to the Court. The prosecutor advised that your victim had declined to go into his situation as he had “a lot going on and doing a victim impact statement is too overwhelming[8]”. However, it is part of the agreed facts upon which I must sentence that your victim is likely to never walk or work as he did before the collision.[9]
[8]Exhibit “A”, page 12, para [63].
[9]Ibid, page 8, para [42].
16The offence of dangerous driving causing death or serious injury was an offence which was introduced in 2004 to fill a gap in the seriousness between the charge of culpable driving causing death and dangerous driving simpliciter. Your plea of guilty to Charge 3 is an acknowledgement that, by driving your van in a manner that was dangerous to the public having regard to all of the circumstances of the case, you caused serious injury to your victim. Whilst the basis of the charge is that you disobeyed the right turn arrow which had been red for approximately five seconds when the collision occurred, the surrounding circumstances are relevant to an evaluation of the seriousness of your offending. The offence, by its nature, involves you having driven your vehicle in such a manner that it posed a real danger to other members of the public who may have been in the vicinity. It involves an acknowledgement that such driving created risks that significantly exceeded the risks which are ordinarily associated with driving. The extent of the risk is assessed by a consideration both of the likelihood of a collision and the seriousness of any likely injuries if a collision does occur.
17You disobeyed a traffic control signal at a very major intersection. Footscray Road is a major road divided by a median strip. As I have stated, your right-hand turn involved you traversing the westbound carriageway which comprised a right-hand turn lane and three lanes for traffic proceeding straight ahead in a westerly direction. It also involved you, very shortly thereafter, having to merge with traffic coming from Footscray Road onto the on ramp for southbound Citylink traffic. There is no evidence that there was anything impeding your view of the traffic control signal, which you disobeyed, or to stop you from seeing the state of oncoming traffic. The intersection is well-lit by street lighting. Even if you had not seen your victim change from the middle to the far-left lane of Footscray Road as he approached the intersection, there is no apparent reason why you should not have been able to see the white van and dark-coloured sedan which had been stopped at the intersection prior to the light facing them turning green. There is no evidence that you braked at all prior to the collision, but rather, appear to have accelerated across the intersection. All of these factors inform the extent of your dangerous driving.
18The likelihood of a collision occurring in all of the circumstances was very high, and the seriousness of any likely injuries if a collision did occur, also, was very high, particularly if your large van were to strike a smaller vehicle which was travelling on Footscray Road within the relevant speed limit of 60 km/hr. Indeed, photographs of the van driven by you show it to have very substantial damage to the front, with the entire bumper bar having fallen off and the passenger side front corner significantly dented, together with a scuff mark and some apparent malalignment of the passenger side front door. This is an indicator of the force of the collision. I assess the objective circumstances of gravity to be at least mid-range for this type of offending and probably somewhat above it. There has been no explanation to the Court as to why you were driving on this night, and why you disobeyed the red arrow and drove as you did in all the surrounding circumstances. I consider your moral culpability to be high in relation to this charge to be high.
19In relation to Charge 4, failing to stop a motor vehicle where a person has been seriously injured, there can be no doubt that you knew that you had struck your victim and that you ought reasonably to have known that he was suffering serious injury. You drove over the body of your victim, opened the driver’s door and looked down and reversed off him and then drove around him and rapidly left the scene, leaving him very badly injured to multiple parts of his body and, indeed, with injuries that may well have been life-threatening had other drivers not stopped and come to his assistance and called emergency services to assist him further.
20Your counsel submitted that your moral culpability should be determined in the light of the fact that there were others around to assist your victim. Apart from the fact that you drove off so quickly that I could not be satisfied on the balance of probabilities that you knew whether anyone had stopped and come to assist your victim, the fact that others may do the decent thing and stop to assist can in no way relieve you of your serious obligation as someone who has caused serious injury to another road user. Your behaviour, in having seen the injured victim right under your vehicle and driven off leaving him lying on the roadway in what has been described as terrible pain from multiple serious injuries, is behaviour of a seriously callous nature demonstrating a lack of fundamental concern for another human being. As I stated to your counsel during the plea hearing, it is the behaviour of someone who appears to be morally bankrupt. When I asked your counsel for an explanation for your appalling behaviour, none was forthcoming other than the fact that you must have “panicked”.
21In sentencing you on Charge 4, it is important to bear in mind that, twenty years ago, the maximum penalty for this offence was increased from 2 to 10 years. This was due to community concern about the very serious issue of a driver who had caused the death or serious injury of a person failing to stop in what was described in the Second Reading Speech on 5 May 2005 by the then Minister for Transport as “a despicable and cowardly act”.[10] Your behaviour comprising the offending on Charge 4 is appalling and callous. Soon thereafter, you left the jurisdiction for many years until police located you and brought you back to Victoria. The nature of your conduct, namely, observing that you had driven over your victim and then reversing and taking off, in my view, places this towards the higher end of seriousness for this serious offence. Your inhuman behaviour was then compounded by leaving the state to escape the legal consequence of your despicable conduct, albeit that it is no part of my task to sentence you for breaching your bail. Your moral culpability for this offence (Charge 4) is very high.
[10]It was plain from the Second Reading Speech that the legislative intent in increasing the penalty by five times was the hope that it would act as a deterrent to drivers who may otherwise not stop.
22On 21 March 2019, police attended an address in St Albans where you were present. You were arrested and a mobile phone was seized, upon which police located photographs of damage to your vehicle, to which I have earlier referred. These photographs had been included in a text message to an associate on 6 March 2019 with the words “bad week”. A preliminary interview began but was suspended to enable police to make further inquiries and to facilitate you obtaining legal advice. When the interview resumed, you declined to answer police questions, as is your legal entitlement.
23You were brought before the Melbourne Magistrates’ Court and were bailed to appear on 17 April 2019, with conditions that you report daily to Sunshine Police Station, reside at 12 Bailey Street, St Albans, and not leave the State of Victoria. You failed to answer your bail on 17 April 2019 and inquiries revealed that you had moved from Victoria to Western Australia, where you remained for well over four (almost five) years. On 6 January 2024, you were arrested by Western Australia Police and, on 8 January 2024, you were extradited from Western Australia. On 9 January 2024, you came before Melbourne Magistrates’ Court and were remanded in custody until 31 May 2024, when you were granted bail.
24You are presently aged 51 years, having been born in June 1973. You come before the court with a significant criminal history in the States of Victoria, New South Wales, Queensland, Western Australia and, also, the Northern Territory. Over a period from 16 October 1991 to 18 July 2017, you have something in the order of 48 driving-related offences, which include multiple offences of driving whilst unlicensed or whilst your authority to drive was suspended, driving under the influence, driving in excess of 0.05 per cent of alcohol in your blood, driving with drugs in your blood, speeding, driving an unregistered vehicle or with a licence calculated to deceive. Also, you have a conviction for some 18 dishonesty offences, which include burglary, theft and obtaining property by deception. You also have convictions for seven offences involving threats to kill or inflict serious injury or using telecommunication devices to menace or related to public disorder; three offences of failing to answer bail; one offence of escaping from lawful custody; and a host of drug-related offences involving possession of illicit drugs or drug paraphernalia.
25Mostly, you have received fines for offending but, on one occasion, were given a Community-Based Order which you breached. You have served some periods of imprisonment of relatively short duration; 14 days, 3 months, and 6 months (the latter suspended for a period of 2 years).
26You have had multiple periods of licence disqualification imposed upon you, the longest of which was two years in 1995 but, over 2016 and 2017, there were several periods of six months and nine months during which you were disqualified from holding a licence. Your criminal history demonstrates a disregard for the law generally, but a particular disregard for both the obligation to hold a licence and the duty of care to obey the law when you do hold a licence.
27In a plea on your behalf by Mr Moore, the court was told that you were born in Western Australia, the younger of two sons, and that your parents separated when you were an infant, with your father having been very violent towards your mother. He stated that you left school around the 13 years of age, as you found undertaking an education very difficult and you are “barely able to read and write now”.
28After leaving school, you began working at age 15 and are said to have had a long working history as a scaffolding rigger. You were tall for your age and often taken to be older than you actually were. At age 14, you apparently fathered a child with whom you have had no contact. You have two other children aged in their late twenties but have not played a significant fatherly role in their lives, albeit that you apparently had some contact with one of them in recent years.
29You had begun using cannabis from age 13 and, in your mid-twenties, started using amphetamine, and then developed an ongoing habit of methylamphetamine use. You were also a heavy drinker, but ceased drinking alcohol after you absconded from your bail obligations in Victoria to Western Australia and , in May 2019, tests showed you to be positive for HIV, apparently related to your longstanding illicit intravenous drug use.[11] Your counsel stated that this was a challenging period for you, and you apparently suffered ongoing gastrointestinal issues. Justice Health records refer to these having been exacerbated when you were in custody in March and April last year due to the effects of the antivirals for which you were prescribed for HIV and, in particular, in the context of that medication being unavailable for short periods and you suffering diarrhoea when the medication was restarted.[12]
[11]Justice Health records on 13 January 2024 record “Asked if he has any thoughts to deliberate self-harm or end his life – He said no and laughed, saying that ‘I’ve already hurt myself enough I think’ confirmed that he meant HIV and MCA accident”, Exhibit “5” page 28.
[12]Exhibit “5”, entry for 15 April 2024, page 4.
30Mr Moore told the court that, in the past 18 months, you had also undergone surgery for a hernia, had your gallbladder removed because of pain associated with gallstones, had had a skin cancer removed from your chest, had undergone a colonoscopy and gastroscopy in February 2025 and, then, polyp removal during a further colonoscopy on 28 March 2025. He noted that you have ongoing back and knee pain which has required advice from an exercise physiologist, and that you have a “leaky” heart valve. However, your Justice Health records seem to indicate that your complaints of chest pain were not consistent with a cardiac source and more likely to be due to costochondritis.[13]
[13]Exhibit “5”, entry for 25 January 2024, pages 20 to 21.
31A significant amount of the plea hearing was devoted to emphasis upon your rehabilitation. Your counsel stated that, during the lengthy time in which you had absconded to and lived in Perth with your mother, you had only intermittently used illicit drugs and had worked as a scaffolder. He stated that, after you were extradited to Victoria, you mentioned to your solicitor that your older brother had been involved successfully with a Shalom Rehabilitation Program in Perth, and she contacted a similar program which had begun to be available here in Victoria since 2020.
32You were bailed from Ravenhall Correctional Centre on 21 May 2024 on condition that you engage in the Betel Shalom Program at Yellingbo in Victoria. A letter from Mr John Hopper, the Managing Director of Betel Australia Limited and also the Program Manager at the Yellingbo facility, was tendered as Exhibit “1”, and Mr Hopper gave sworn evidence at the plea hearing.
33Mr Hopper stated that he had assessed you by telephone when you were still in Ravenhall Prison, found you suitable for the program, and he collected you from Ravenhall on 31 May 2024 so that you could commence the program at Betel Shalom. He stated that it is a strict Christian faith-based rehabilitation program which is an adaptation of the Perth program model and is funded privately by clients’ Centrelink benefits. The facility also runs a gardening business in the community for private paying customers in which clients work for no pay and the proceeds go towards running the program.
34Mr Hopper stated that the rehabilitation program is a highly structured and strict five-stage program with rules such as no swearing, smoking, gossiping or talking disrespectfully, all staff directions to be followed, conflict to be resolved positively, truth not be bent, and clients to be transparent and honest and have integrity regardless of whether telling the truth might bring some form of punishment. Such punishment for breach of rules might include being asked to leave or having to restart the program from the beginning, or result in loss of privileges such as being permitted to drive or having day leave, or minor infractions may lead to one having to wash all the dishes of other residents.
35From Monday to Friday, residents are required to rise each morning at 4:45am and to be ready for personal bible study at 5am and a subsequent group bible discussion, before undertaking work from 8am to 4pm, whether around the Betel Shalom 10-acre property or in the private gardening business. After finishing work, they return to their rooms and undertake various chores, finish dinner by 6 or 6:30pm, attend a men’s group or other program on Wednesday and Thursday in the evenings and are generally in bed by 8:30pm. On Friday evenings, they go out to a Christian men’s group, on Saturdays undertake a major cleaning task (as is the case on Tuesday evenings), along with working and occasionally are permitted a rest on Saturday morning.
36The program has a capacity for 10 people to undergo rehabilitation. The accommodation for residents consists of two rooms which have two sets of bunkbeds in each of them, and another room which has only one set of bunkbeds.
37Stage 1 of the program requires supervision of a resident, at all times, for a period of at least three months. No phone calls, at all, are permitted in the first two weeks, and, thereafter, they are facilitated by staff for a period which may be up to six months. During Stage 1, a resident is not permitted to possess his own phone and has no driving privileges and a curfew of 5pm applies.
38Stage 2 commences at around three months and is focused upon training and upskilling, as it is sought to have a resident become fit to work in the community. During Stage 2, a resident is permitted to leave the property if accompanied by a staff member in order to go to church or bushwalking, or to commence work. However, after three months, the person is permitted to leave once per month with a family member albeit not to licensed premises, and they are not supposed to smoke cigarettes. They may apply for weekend leave and family members are screened for this purpose, and the rules and restrictions are explained. The same curfew applies in Stage 2 as in Stage 1.
39Stage 3 normally commences about six months after the resident has first arrived. A resident is permitted the privilege of using a vehicle, if they have one, and permitted to leave for half a day on Saturday, and on Sunday can have the day off.
40Once Stage 3 is reached, the curfew is extended to 8.30pm. Stage 3 residents are permitted to have an iPhone on which Betel Shalom staff put particular apps so that they can connect with approved family members or other contacts by text or phone call, but they are not permitted to have internet access, social media or other unapproved apps. During Stage 3, a resident begins to work outside the community for three days per week.
41Stage 4 is attained by a resident generally some 9-12 months after commencing at Betel Shalom. Restrictions in relation to their iPhone are removed and they are permitted to have a Facebook App. Their work outside the facility increases to four days per week and their curfew is increased to 10.30pm. They also have extra time off and will generally be permitted both Saturday and Sunday off once per month.
42Stage 5 of the program usually commences about 12 months after the resident has begun the program. This is when five days a week of paid work is permitted and the participant is permitted to live away from the Betal Shalom property. The participant is only rostered on one day per month to go to church or attend an outing with other residents in order to lead by example.
43After Stage 5, a resident applies for graduation from the program. There is no set time for this. They need to be living outside the Betel Shalom property. Mr Hopper stated that since he commenced at the Yellingbo property 3 and a half years ago, only one of the approximately 100 participants has come back to graduate. Many of these 100 participants did not remain past stage 2 and only about 5% have made it to the 12 month mark to stage 4. The program has been operating at only about 50% of its total capacity of 10 beds during that three and a half years.
44Mr Hopper stated that you had entered into Stage 4 approximately two months ago, which brought privileges of a personal phone, car access and four days of external work each week, as well as regular weekend leave. He stated that you had reconnected with a cousin in Geelong and spent meaningful time with your mother, aunt and a son who travelled from interstate.
45I here interpolate that your mother and your aunt, both of whom live in Western Australia, were in court to support you, as was a Mrs Joan Banderhorn, who has been assisting you with literacy whilst you have been resident at Betel Shalom, along with Mr Antonio Corrado, the project manager at Betel Shalom, Mr Ben Mitchell, the counsellor at Betel Shalom, and Mr John Hopper.
46Mr Hopper stated that, in your time at Betel Shalom, you had had a number of different employers but were now working four days a week as a truck driver which had commenced approximately a month ago. I here note that a letter from Richard Elliott, General Manager of Precision Scaffolding dated 6 May 2025, stated that you work as a casual truck driver with that company and had commenced working 30-40 hours per week on 2 May 2025 at a rate of $40 per hour. You leave the Betel Shalom property at 5.00am and work from 6.00am to 2.00pm or 3.00pm from Tuesday to Friday, driving a truck to deliver scaffolding. You are unsupervised as you go to and from work provided you keep a logbook, which must be produced on request.
47Mr Hopper stated that you could get to Stage 5 in around three months. He stated that you had worked hard to achieve and keep the privileges that you now have, and he considered that you had shown yourself to be responsible and honest. When he has spoken to you about your offending, he stated that you become tearful and that you were carrying the weight of what you did on your shoulders. He stated that it is hard for him to believe that the man he sees would have left a seriously injured young man on the roadway.
48When asked by me, Mr Hopper stated that, notwithstanding that you were aware of the Shalom program in Western Australia, which your brother had undertaken, in the almost 4 years and 10 months that you spent in Western Australia after absconding from your bail, he was not aware of you making application to get into that program or any other form of rehabilitation. He stated that, when he assessed you in May 2024, you said that you had been trying to avoid illicit substances, but had still used some methamphetamine and cannabis, and you expected that Victoria Police would come knocking on your door at some stage.
49Under cross-examination, Mr Hopper conceded that things relax very considerably in Stage 4 for a resident, particularly being able to have a phone and a vehicle, and being able to have a day off per week. He believed that you had been in Stage 4 since March or April this year. He thought it likely that you would be in Stage 5 and move away from the Betel Shalom property by November. He stated that although people can relapse in Stage 4, by then, approximately 75 per cent of the rehabilitation work has been done. He also stated that you had mostly had a roommate whilst you were at Betel Shalom and agreed that there were no bars on windows or locks on doors and, although parts of the rehabilitation are strict, it is not like a prison.
50In his letter, Exhibit “1”, Mr Hopper had expressed his concern that the healthcare support required by you may not be accessible within a custodial environment, but conceded that he was not an expert on the prison system and what was available. He also stated in his letter to the court that incarceration would not only interrupt your progress, but likely reverse much of the ground gained. However, under cross-examination, he conceded that you were off drugs after having reduced your intake in Western Australia to taking methylamphetamine “at times”, and had re-established a relationship with family that was unlikely to deteriorate, and now had insight into your drug use, which would not change.
51In re-examination, Mr Hopper expressed the view that your employability, accommodation, physical and mental health was not going to be improved by going to prison, and confirmed that he had had many conversations with you whereby you were crying, ashamed and guilty about your offending. He also stated that, although you had done a fair amount of time in Stage 4, time was not the only determinative factor in moving to Stage 5.
52In sentencing you, your commitment to undertake the program at Betel Shalom and the rehabilitative gains that you have made there must be taken into account, although it is relevant to note that you only began this program as a condition of bail after being released from custody following your extradition to Victoria from Western Australia.[14] Nevertheless, you have been in that program for almost 12 months. In accordance with the principles in Akoka v The Queen (“Akoka”),[15] I note that Stages 1 and 2, in particular, and to some extent Stage 3, have very stringent rules and restrictions. The Court takes into account the very punitive aspects of those stages in the sentencing process as well as the ongoing albeit less punitive constraints in the other stages. The truncation of liberty whilst undergoing the program at Betel Shalom relaxes considerably after the first six months, as I have described. I do not believe that the regime described in Stages 3, 4 and 5 can be equated with the severe truncation of liberty experienced by someone serving a prison sentence.
[14] [2017] VSCA 214 (Akoka), page 32, para [107].
[15] Akoka.
53Of course, your progress in rehabilitation over the past year is also important to take into account. However, it seems that you had reduced your methylamphetamine intake quite markedly during the time that you had absconded to Western Australia. Not only were you undertaking fulltime scaffolding work, according to your counsel, but there is no record of criminal offending during that period. In these circumstances, it is perhaps unsurprising, that you have done so well in the program run by Betel Shalom.
54Mr Hopper stated that you have expressed shame and acknowledgement in relation to your victim’s pain and suffering. It would seem that it has taken quite some time for you to develop such insights. As I have mentioned, Mr Hopper stated that you had been expecting that police would one day knock on your door. However, it is plain that you lacked the moral fibre to voluntarily go to police and acknowledge your guilt. This only came many years after your offending when police found you in Western Australia. After being extradited to Victoria and brought before the Magistrates’ Court on 9 January 2024, it was not until over 9 months later that you indicated your intention to plead guilty, and actually did so on 31 October 2024. Nevertheless, your pleas of guilty have utilitarian value and have certainly spared your seriously injured victim having to relive his ordeal. That utilitarian value, together with some relatively recent remorse, entitles you to a tangible discount upon the sentence which you would otherwise have received.
55Whilst acknowledging that you had a difficult time during your 147 days in custody with a number of health issues, particularly, significant gastrointestinal upset, your Justice Health records are replete with self-focus about health issues of many and varied a nature, and some recorded impressions of treaters about possible exaggeration.[16] On 12 April 2024, it was noted that you:
“reported mood is not good due to being in prison, letting (your) family and (yourself) down, reported HIV diagnosis three years ago ‘changed (your) life’ and claims that depression has ‘doubled’.”[17]
Nowhere in those notes is there any reference to you suffering distress or guilt or remorse relating to the catastrophic injuries you inflicted upon your 30-year-old victim by your dangerous driving. However, in a letter dated 18 May 2025 from St Vincent’s Hospital signed by a clinical nurse consultant, Josh Puglia, it is reported that you had been attending the Thorne Harbour Health Clinic to manage your physical, mental and social support needs since April 2025. The author states:
“I firmly believe while he has reflected and acknowledged his offences, understanding the detriment that theft of petrol, causing serious injury by dangerous driving and failing to assist after an accident can have not only on his own health and wellbeing but that of his community. Similarly, he has reflected on how his social circle impacted on his offences and he's personally voiced not wanting to associate with previous cohorts, he states was extremely detrimental to his health and wellbeing and therefore has found participating in regular occupation and peer navigation to be supportive of new and healthier lifestyle changes and adaptive behaviours and help promotion.” [18]
[16]For example, note was made in your records on 1 February 2024, after a code black was called, that you “moved up from the bed to the chair with encouragement +++” yet you “appeared well” and were breathing normally with full movement and nil signs of distress when sitting in the chair. A further note was made that you were “very preoccupied with medications and not having them”. (Exhibit “5”, p 18). An earlier note on 30 January 2024 in response to you insisting on pills for chest pain recorded “Nil indication for cardiac medication as per MO encounter”), Exhibit “5”, page 20.
[17]Exhibit “5”, page 4.
[18]Exhibit “7”.
56Although this is not a real acknowledgement of the terrible suffering of your young victim which has been horribly protracted in relation to multiple very serious injuries, it is perhaps a start. Even Ms Sprott, your psychologist, in her letter dated 1 May 2025, makes no mention of your acknowledgement of the fate of your victim, but does say that over the 12 sessions “he reports to be committed to his abstinence from illicit drug use, and has made active steps towards improving his physical and mental health since the time that I’ve been seeing him”.
57Similarly, Dr Colman Fung of Main Street Medical Clinic, your general practitioner, provided a report dated 9 April 2025 in which he mentions follow-up of your HIV diagnosis, your fatty liver, care plan for back pain and referral for mental health for your anxiety and depressive mood, as well as your investigation by way of colonoscopy and at Box Hill Cardiology, but makes no mention that you were stricken by guilt, shame or remorse for your victim.
58Whilst acknowledging that you will soon be 52 years of age and that, in recent years, you have had some significant health concerns for which, to your credit, you have engaged in treatment not only by way of psychological counselling but with Thorne Harbour Health, Alfred Hospital Infectious Diseases Mental Health Service and St Vincent’s Hospital Health Independence Program, it seems that the greatest ongoing health concern at present is the management of your HIV positive status. This has improved with the administration of Cabenuva and, when I remanded you in custody, I provided full details of what had been provided to the Court about this treatment to custody authorities as having been more efficacious than the Biktarvy treatment formerly administered when you were in custody on remand. To my observation, the Justice Health notes reveal significant attention to your health concerns and I have no reason to believe that they will not be attended to in as efficacious a manner as possible whilst you are in custody, even though I acknowledge that having physical and mental health concerns does make the service of a term of imprisonment more onerous. Although it has been suggested that you have a “leaking heart valve”, it has not been established according to any of the material which was tendered at the plea hearing. Other than that, your generalised back and neck pain do not seem to have been an impediment whilst you have been working as a truck driver delivering scaffolding in the community and, whilst previously in custody, physiotherapy and exercises were prescribed for this. No mention was made on the plea of your Hepatitis B status, but it would appear that custody authorities are well aware of this and of the danger of Hepatitis reactivation if antiviral treatments are ceased.[19]
[19] Exhibit “5”, clinical notes of 15 April 2024, pages 3 to 4.
59Whilst there is reference to you having suffered depression and anxiety, you have not been medicated for this as far as I can see in any of the materials tendered on your behalf. Ms Sprott noted that you had attended 12 sessions of psychological therapy between 8 August 2024 and 20 March 2025 and had demonstrated a commitment to abstinence from illicit drug use and made active steps towards improving your physical and mental health. There is no reason why such therapy could not be continued in custody, if necessary, as I understand that all sessions were conducted online via a telehealth link after a Mental Health Care Plan was provided by your general practitioner.[20] Otherwise, it is plain that you have received advice relating to diet and exercise concerning your BMI and what has been described as a moderate-to-severe fatty liver in August 2024.[21]
[20] See Exhibits “3” and “4”.
[21] Exhibit “4”.
60In relation to the actual circumstances of your offending on charges 3 and 4, the primary thrust of the plea on your behalf was preoccupied with aggravating factors that were not present in your offending. I have outlined already why I have arrived at the assessment of seriousness of charges 3 and 4. Other than that, the reliance upon your physical and mental health, the restrictive nature of your in-patient program at Betel Shalom according the principles in Akoka, your rehabilitative gains at Betel Shalom, together with your plea of guilty, lack of offending in recent years and good work ethic and recent employment as a truck driver, were said to point to good prospects of rehabilitation. In all of the circumstances, Mr Moore urged that the court should defer sentence pursuant to s 83A of the Sentencing Act 1991 for at least 6 months to enable you to complete the program at Betel Shalom. The secondary submission was that all the circumstances warranted a community corrections order, or at the greatest, a combination sentence by way of imprisonment and a community corrections order.
61I have carefully considered the submissions made on your behalf. Whilst s 83A grants a discretion to defer sentence, I am not convinced that I should exercise that discretion in this case. Section 83A(1)(b) states that the court may defer sentencing for a period not exceeding 12 months if it is of the opinion that such would be in the interests of the offender. Subsection 83A(1A) sets out the purposes of deferral.
62In my view, your offending on charges 3 and 4 is so serious that the predominant sentencing principles must be denunciation, general deterrence, just punishment and community protection. To some extent, there must also be specific deterrence because of your appalling driving record, albeit that there does not appear to have been offending of this gravity in the past by you. Undertaking the intuitive synthesis which I must, and taking into account what mitigating factors have been put on your behalf, I have concluded that there is no sentence appropriate for the grave offending on charges 3 and 4 other than a term of imprisonment with a head sentence and a non-parole period. In this regard, it is important to note that, over 10 years ago, the Court of Appeal in Tokay v The Queen stated that “several judges of the Court have described the reprehensible nature of the offence, particularly in circumstances where the victim has suffered serious injury and have referred to the fact that offenders must expect a substantial term of imprisonment”.[22] Whilst it is trite to say that no two cases are the same, it seems to me that it would shock the public conscience if your offending were to result in a sentence other than a custodial one with a head sentence and non-parole period.
[22] [2014] VSCA 285 at page 9, para [26].
63Given that inevitability, I do not consider that it is in your interests to defer sentence. In any event, according to Mr Hopper, a very significant proportion of the rehabilitative program at Betel Shalom (something in the order of 75 precent) has been completed by you and it is possible that you would be out living in the community in Stage 5 of the program within some months. Already, you have been working in the community for quite some time as a truck driver in the scaffolding industry and for the last month having been doing so for four days a week. A letter from your most recent employer says that you average between 30 to 40 hours a week.[23] Thus, the most stringent constraints of the Betel Shalom program are behind you. Whilst rehabilitation is always important and courts acknowledge that it can be a jagged process for a long-term drug user, it is not the predominant sentence consideration in this matter. Doing the best I can, it seems that the deferral of sentences pursuant to s 83A have predominantly been granted in less serious cases than yours, where an offender’s prospects of rehabilitation are unclear or no rehabilitation has taken place or it is thought desirable to have the offender participate in a CISP program to address the underlying causes of the offending. Whilst the ultimate purpose for deferral is not stringently curtailed, it seems to be that the matters listed in subsection s 83A(1A) do not apply in your case.
[23] Exhibit “2”.
64Although I have rejected the submission pursuant to s 83A, I consider that your prospects of rehabilitation are probably better than they were when you were first extradited to Victoria in January last year. In this regard, I note that, notwithstanding a longstanding methylamphetamine addiction, you apparently have a reasonably good work history and have engaged in work whilst undertaking the Betel Shalom course. Given your very lengthy history of offending and drug addiction, it is possible that you have now reached an age where you are sick of your dysfunctional lifestyle and have finally developed some insight and determination to change it. It seems that your prospects of rehabilitation are likely to be assisted by serving a period on parole, which you have not previously done.
65Charges 1 and 2 are brazen thefts and seem to represent a cavalier disregard for others’ property, as is evident from your history of many offences involving dishonesty. Each charge warrants a term of imprisonment.
66In relation to charges 3 and 4, I note that they are discrete offences, but given that both offences occurred within the same time frame, I consider that in the interests of totality there should be some concurrency.
67On charge 1, theft, you are convicted and sentenced to be imprisoned for a period of 3 months.
68On charge 2, theft, you are convicted and sentenced to be imprisoned for a period of 3 months.
69On charge 3, dangerous driving causing serious injury, you are convicted and sentenced to be imprisoned for 20 months.
70On charge 4, failing to stop, you are convicted and sentenced to be imprisoned for a period of 3 years and 9 months.
71The base sentence is that of 3 years and 9 months imprisonment imposed on charge 4. I direct that one month of each of the sentences imposed on charges 1 and 2 and 10 months of the sentence imposed on charge 3 be served cumulatively on the sentence imposed on charge 4 and upon each other. The total effective sentence is 4 years and 9 months imprisonment. I direct that you serve a period of 2 years and 9 months before becoming eligible for parole.
72I declare a period of 153 days pre-sentence detention to be time reckoned as time already served under the sentences imposed this day.
73Pursuant to s 6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty, the total effective sentence would have been 7 years with a non-parole period of 4 years and 6 months.
74Upon convicting you of Schedule 1 offences, namely, two charges of theft, one charge of dangerous driving causing serious injury and one charge of failing to stop after an accident, and upon being satisfied that the property in the schedule is property that is of negligible value, the court orders, pursuant to s 78(1) of the Confiscation Act 1997, that such property be forfeited to the state and further directs that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and / or analysed and then tested and destroyed. This relates to 16 items seized by police in relation to your offending.
75Upon convicting you on Charge 4, pursuant to s 61(6) of the Road Safety Act 1986, the court orders that all licenses to drive a motor vehicle that you may hold are cancelled and that you are disqualified from driving a motor vehicle for a period of 4 years from today.
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