Director of Public Prosecutions v Harry
[2019] VCC 850
•12 June 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-00089
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAKE HARRY |
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| JUDGE: | HIS HONOUR JUDGE GEORGIOU |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 May 2019 |
| DATE OF SENTENCE: | 12 June 2019 |
| CASE MAY BE CITED AS: | DPP v Harry |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 850 |
REASONS FOR SENTENCE
---Subject: SENTENCING
Catchwords: Reckless conduct endangering life; criminal damage
Legislation Cited:
Cases Cited:
Sentence: Total effective sentence of three years and four months imprisonment with a non-parole period of 22 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Coombes | Office of Public Prosecutions |
| For the Accused | Mr F. Cameron | Hannerberry Law |
HIS HONOUR:
1Jake Harry, on the 29 May 2019 you pleaded guilty before me to the following charges:
2Charge 1, that without lawful excuse you recklessly engaged in conduct that placed Jayleigh Hook, Tennaya Hook and Koby Hook in danger of death, namely dangerously chasing and ramming a vehicle being driven by Jayleigh Hook.
3Charge 2, on 19 May 2018 you intentionally and without lawful excuse damaged a motor vehicle belonging to Jayleigh Hook.
4You also pleaded guilty to a summary charge that was transferred to this court pursuant to s.145 of the Criminal Procedure Act 2009, being that you drove a vehicle whilst exceeding both the prescribed concentration of alcohol and the prescribed concentration of drugs.
5The offence of reckless conduct endangering life carries a maximum penalty of 10 years' imprisonment. The offence of criminal damage carries a maximum penalty of 10 years' imprisonment. The maximum penalty for the summary offence, a fine of not more than 30 penalty units. There is also a mandatory minimum disqualification period of 16 months in respect of your licence.
Offences
6The prosecution opening was tendered on the plea and marked Exhibit A.
7Your offending can be summarized as follows. On Saturday 19 May 2018, at about 11 pm, Ms Jayleigh Hook was driving her car, a blue Ford Falcon sedan, along Gap Road, Sunbury.
8In the car were her two children. Her daughter, Tennaya, aged 11, and her son, Koby, aged 4. Tennaya was seated in the front passenger seat. Koby was seated in the rear of the car in a child safety seat. The three had been to the local McDonald's outlet as a family treat. The children had been well-behaved throughout the day and it was Ms Hook's birthday.
9You were driving your Ford Ranger utility along Gap Road at the same time. Your car was positioned immediately behind the victim's Ford Falcon sedan. You did not know the occupants of the Ford Falcon.
10As Ms Hook passed a service station on Gap Road, you switched your lights on to high beam. Ms Hook noticed the lights and tried to adjust her rear vision mirror. You began following her at an even closer distance, at times so close that she could not see your headlights in her rear vision mirror.
11As Ms Hook approached the roundabout at Gap Road and Emily Drive, she did a full circle of the roundabout to allow your car to pass hers. Instead, you continued to follow her.
12Ms Hook was now driving along Elizabeth Drive. You were still behind her. She indicated to turn left into Darwin Street. At this point she felt a jolt to her car. A witness in another car travelling behind you saw your car 'nudge' the victim's car. According to that witness, you were driving erratically. She called the Sunbury police, to report what she had witnessed.
13As Ms Hook continued along Elizabeth Drive, you sped up on the other side of her car preventing her from turning left into Darwin Street. Ms Hook then accelerated along Elizabeth Street, before turning right at a roundabout at Mitchells Lane. You were still following close behind.
14Ms Hook travelled south on Border Boulevard. When she reached Marsh Crescent, she stopped her car in the middle of the road and got out. She did this thinking that you had mistaken her for someone else. You pulled up next to her car and got out of your car. Ms Hook became scared when you got out. She got back into her car, did a U-turn and headed back towards Mitchells Lane. She accelerated to a speed of approximately 80 km/h trying to escape you. You continued following her along several roads. By this time all three victims in the Ford Falcon were panicked, screaming and crying.
15Tennaya, the 11-year-old, used her phone to call 000.
16As Ms Hook was travelling along Phillip Drive, you caused your car to collide with hers. You pushed her car sideways, causing her to lose control. As a result she ended up on the wrong side of the road. She remained on the wrong side for approximately 30 metres until she was able to find a break in the median strip and drive back onto the correct side. As she did this, you again collided with her car, pushing her once more on to the wrong side of the road and up onto the nature strip. Ms Hook had to avoid an oncoming car before she managed to get back onto the correct side of the road.
17Ms Hook began driving towards the Sunbury police station, travelling at speeds of over 100 km/h in order to avoid your pursuit of her. She arrived at the police station at approximately 11.35 pm.
18Ms Hook drove into the slip lane at the front of the police station. You drove past her car and entered the slip lane from the other end of the road. You then drove towards Ms Hook's car and rammed into her driver's side door with such force that you turned her car 180 degrees, pushing it into wooden bollards. There her vehicle became stuck.
19You then got out of your car and climbed on to the roof of Ms Hook's car. You repeatedly jumped on her roof causing it to cave in. The windscreen also shattered in the process. You jumped onto the bonnet of her car and kicked the windscreen causing it to smash.
20You then got off the car and picked up one of the broken wooden bollards. You approached the passenger side door opening it. Ms Hook threw herself over her daughter to protect her from you.
21By this time police had arrived. You were seen near the front of the victim's car, clapping your hands. Ms Hook was still leaning over her daughter in the front passenger seat.
22You were arrested and taken to Broadmeadows police station.
23CCTV footage of part of the incident, that which occurred at the police station, was played in court and tendered. It was taken by a member of the public that had witnessed some of your behaviour.
24At 1.44 am a sample of your breath was taken for analysis. A blood alcohol reading of 0.103 was obtained. At 2.16 am, an oral fluid sample was taken. It was analysed and methylamphetamine was detected.
Police Interview
25You were interviewed by police the following day, 20 May 2018 at 12.22 pm.
26You said you did not know the victims of your offences.
27You admitted to being drunk and drug affected at the relevant time. You admitted the offending.
28You said you did not know what triggered your conduct but added, at answer 88, 'And for them kids to be in the car it's fuckin shit but the way she was driving you wouldn't have thought she would have had kids in the car.'
29Further answers you gave police suggested blame on the part of the victim. At 91, you answered, 'That's what I don't know. That's what - I dunno, I dunno. Maybe I didn't realise I had my high beams on or something. She fucking brake tested me or something. I know she'd done that a few times but - yeah, I don't know what - just don't know. Was probably just like revved up and losing my shit.'
30At Question 97, you answered, 'That's what that would have been so she's got a bit of bullshit in there but whatever.' Question: 'And where did - so she stopped in the middle of the road?' Answer: 'Trying to make me go up the arse end of her. That's what I mean. It's beyond me. There's kids in the car. Absolutely beyond me.'
31At Question 100, you answered, 'She was fucking going for it, mate.' At Question 101, you answered, 'Going for it. Not towards the cop shop either. Not for a long time after that. And that then, that's why I tell ya, that's why - like, it looked like when she pulled into the cop shop that she was maybe trying to scare me or something and she went and fucked off again. So that's why I did what I did, 'cause I thought she was going like - I'm not fucking losing my wallet again.'
32And then at Question 121, you were asked, 'And just to confirm, why were you following like then?' Answer: 'I don't know what had instigated it.' Question: 'But it was because - well, what did you believe?' Answer: 'In the end, I thought they were running so that's why I was trying to keep up.'
33There were parts of the sequence of events which you said you could not remember. There were other parts about which you did profess to have a recollection.
34At times you suggested to police a belief that she might have had your missing wallet, but there was absolutely no rational basis for you to have reached such a belief.
35At 249, you answered, 'I'm not sure. I don't know. I don't know why it was then. Maybe I did find something on my phone when I was at the roundabout. I don't remember. All I wanted was for them to pull over but they just kept running and running and running.'
36Question, at 252: 'How do you sort of assess the incident from last night?' Answer: 'It's disgusting.' Question: 'Do you think that what you did last night was wrong?' Answer: 'Fuck, yeah.'
37You also showed little insight as to consequences of your behaviour. At Question 299, 'So obviously did you ever consider that your actions last night put them in danger?' Answer: 'I reckon it was both our actions.' Question: 'So her actions?' Answer: 'Yeah.' Question: 'And your actions. So your actions - did you consider that could possibly put them or yourself in danger?' Answer: 'I knew I was putting myself in danger. I'm surprised I made it that far.' Question 303: 'And when she went on the opposite side of the road, what did you think at that stage?' Answer: 'I was - yeah, obviously she didn't in any way, I suppose, but I just feel like she was - she intended a lot of this at the start. Like I said, I thought it was a male. I don't know. It's really weird. My thoughts are a lot different than what happened.'
38As I have said, overall, in that interview, you showed little insight as to the impact of your behaviour or an acceptance of full responsibility, although there were some expressions of remorse and an acceptance that you, at least, deserved to be charged.
39I should make it clear that it has not been suggested by your counsel at the plea hearing that Ms Hook in any way contributed to your behaviour.
40On any view, this was a most serious and terrifying ordeal for the innocent victims of your conduct.
Personal Circumstances
41I turn now to your personal circumstances which are set out in the defence outline of plea submissions which I have read.
42You were born in Melbourne on 21 May 1993. You are now aged 26 and were 24 when these offences were committed.
43Your parents separated when you were 14. They have both re-partnered and live in Kerang.
44You have a younger brother who is undertaking an apprenticeship in carpentry in Melbourne.
45You left school mid-way through Year 9 at Kerang Secondary College in 2009. In 2011 you commenced an apprenticeship in carpentry. You completed that in 2013.
46In February 2016, you commenced your own company – JAH Carpentry. You employ a qualified carpenter and two apprentices.
47Your partner, your father and his partner were present in court during the plea hearing, as were a number of other persons supportive of you. Your mother was not present. You told Mr Joblin that because of your shame you have not told her very much about the details of your offending.
48You have a very good work history since leaving school and that is a matter that goes very much in your favour, particularly in my assessment of your prospects for rehabilitation.
49In May 2018, you met your partner and you moved in together in June of that year. Your partner gave birth to your daughter on 11 May 2019. You are responsible for their support. It is submitted by your counsel that in becoming a father has come the realization of the need for you to exercise greater responsibility. I hope that for the sake of your family, and the community that is true.
50Your offending has clearly impacted on those close to you. Despite that, I accept that you will continue to have the support of your family and friends.
Prior Convictions
51You have admitted prior convictions for possession of methylamphetamine in 2014 and, in 2012, for exceeding the speed limit by over 25 km/h but less than 30 km/h. They are of minor relevance to the question of your prospects for rehabilitation. I note that they occurred some time ago and that otherwise, up to the date of these offences, you had led a largely good life.
52I am more concerned, however, about the subsequent offence for driving whilst your licence was suspended. Your licence was suspended by police on 20 May 2018 when you were served with a notice under s.51 of the Road Safety Act of 1986. On 30 November 2018, you were caught driving when going to report for bail. On 5 March 2019, you were convicted by a magistrate and fined $2200. No order was made against your licence.
53Despite the immediate suspension and despite the commission of these offences, you chose to drive when you knew that your licence was suspended.
54You told your counsel that this offending was a 'big wake-up call'. You told him that you knew drugs could not be a part of your life and that you had not touched them for the preceding 12 months. Regrettably, despite that wake-up call, you continued to use drugs after this event.
Character Referees and References
55Ms Mallory Mackie was called to give evidence on your behalf. She is a prison officer. She met you some 18 months ago, you being a client of her husband. Ms Mallory states that she has discussed with you the offending and that you expressed your remorse to her. You have changed, in her opinion, particularly since the birth of your daughter. She was not aware of your continued drug use.
56Mr Steven Peroulis was also called to give evidence on your behalf. He is a director of a property group and engages you as a sub-contractor to work on his projects. He has done so over the last four years. He describes you as a good and dedicated builder and employer. You told him that you were experiencing personal issues at around the time of the offending arising from a relationship break-up and business cash flow problems. You told him that at the time of your offences you had a lot to drink and also had drugs in your system. You told him you felt bad about what you had done to the victims of your offending. He too was not aware whether you continued to use drugs.
57I have also had regard to the two character references tendered on your behalf at the plea hearing.
Psychological Assessment – Ian Joblin
58Tendered at the plea hearing and marked Exhibit 2 was a report from forensic psychologist, Ian Joblin, dated 1 May 2019. I have read the report and have regard to its contents.
59He interviewed you on the 29 April 2019. You told Mr Joblin that you became angry at losing your wallet and then angrier when your brother took your keys to prevent you from driving. You got your keys from your brother after a serious confrontation with him and then drove away.
60Mr Joblin stated that you were in a state of psychological upset and anger. You were confronted by the circumstances involving the victim who was driving in front of you. 'While the initial interaction that Mr Harry interpreted as being provoking may have been minor, under the conditions of his psychological state at the time, the situation became major for him. In my opinion, Mr Harry would have been able to tolerate a similar situation without aggression had he not already had a lowered threshold of tolerance as a result of alcohol and drug abuse as well as the factors noted above.'
61There is no elaboration in the report as to what it was the driver did to provoke you but it seems to echo what you told police about the victim braking in front of you. Whatever it was that you perceived, nothing could possibly justify your outrageous conduct towards the victims.
62In Mr Joblin's opinion, these offences 'did not represent ongoing issues of a violent or aggressive disposition. Rather, they represented a state of serious disinhibition associated with the use of alcohol and drugs.'
63I am most concerned that despite these offences you reported to Mr Joblin that you continue to use illicit drugs. It is, however, to your credit that you were truthful with Mr Joblin about your continued drug use. And for that reason, I am prepared to accept that you were truthful when you spoke to him of your remorse.
64Mr Joblin noted in regards to your remorse the following. 'He was remorseful and acknowledged the inappropriate nature of his behaviour. He acknowledged that the offences should never have happened. He expressed his considerable regret. Remorse, in my opinion, is an emotive concept and there is no doubt that when discussing this incident, particularly the issue of the presence children, Mr Harry became tearful and quite obviously distressed.'
65However, these offences occurred over 12 months ago and you have not undertaken any psychological or drug treatment within that time. It should have been plain to you after the commission of these offences that you needed serious professional help. In 2014, you had treatment at Odyssey House for your illicit drug use. That was clearly insufficient. You were vague in your report to Mr Joblin about a mental health care plan provided by your GP and it is clear that you did not avail yourself of that service.
66It is sadly plain that unless you deal with your drug problems you are going find yourself at risk of re-offending with increasing penalties.
Sentencing Considerations
67I turn now to the sentencing considerations. I am required in sentencing you to have regard to a number of factors.
Offence Seriousness
68I turn first to the 'nature and gravity' of the offences. In my opinion, your offending can only be described as very serious.
69You were intoxicated on both alcohol and drugs at the time you engaged in this offending. Your blood alcohol reading was 0.103. You also had methylamphetamine in your system.
70Your conduct towards Ms Hook and her children itself was prolonged. I am told the distance over which you followed the victims in their car was between five to 10 kilometres and that the incident lasted approximately half an hour. Through your actions you placed these three persons in danger of death.
71Your car collided with the victim's car on three occasions before she got to the Sunbury police station. Two of those collisions forced Ms Hook onto the wrong side of the road. On one of those occasions, she was required to take evasive action to avoid an oncoming car.
72You caused her to accelerate at speeds of over 100 km/h late at night to try and escape from you. She drove to Sunbury police station thinking that she might be safe from you. However, even at the police station you rammed her car, the force of which caused her car to turn 180 degrees.
73Your terrorising of the victims did not end there. Having caused the victim's car to become stuck, you got out of your car and continued your rage towards her by climbing onto the roof of her car, stomping on it and kicking in her windscreen. You caused significant damage to the car's roof and windscreen whilst the victims were still in the car.
74You then picked up a broken wooden bollard and approached the victims in their car. Ms Hook threw herself over her daughter. She was unable to protect her son in the back seat of her car. They were all, understandably, extremely terrified.
Victim Impact Statements
75Victim impact statements were provided and tendered and the consequences of your offending is well-reflected in the two victim impact statements. They were read out in court during the plea hearing and I have since re-read them.
76Ms Hook speaks of her enduring fear. She states, ' I feel we can no longer go out at night as I am a nervous wreck. I am scared to drive at night. Even during the day, I am always waiting for someone to attack us again. I hardly ever drive unless I absolutely have to. I make excuses to friends not to go out. What if he is there? What if he sees us? What would I do if I saw a car that looked like his? Nothing can make this fear go away.'
77She goes on, 'I have lost faith in the police because I thought we were going to die. I thought he was going to drag my 11-year-old daughter out of the car. I couldn't get out because he rammed my car into the bollards. All I could do was throw myself across my daughter, praying that my body would be enough to keep her safe. My four-year-old son was in his car seat in the back and I had no way of protecting him.'
78She continues to receive counselling for the psychological impact your offence has had upon her.
79Her daughter stated in her victim impact statement, 'I feel like it's my fault that we went out so late because I was nagging Mum all night to do something special at midnight so we could always remember when she turned 30.' She went on, 'When that man started smashing our car, Mum rang 000 and said we would be safe that no one came to stop him smashing our car. I was in the front seat and I wanted to go in the back seat with my little brother so he wasn't scared but Mum was yelling at me not to take off my seat belt. I wanted to be alone with my little brother so if we died he wouldn't be alone. I was scared we would die just like my dad did in his car smash.'
Moral Culpability
80I turn to the issue of your moral culpability. Your level of moral culpability is high. It is not diminished in any way by reason of your being intoxicated by drugs and alcohol. There is nothing to lessen the degree of your moral culpability with regard to the offending.
Plea of Guilty
81You indicated a willingness to plead guilty to the offences at a very early stage. You pleaded guilty at a committal case conference on 17 January 2019 and the matter proceeded by way of a hand-up brief. The way in which this case has proceeded has meant that the court and the community have been spared the cost and time of a trial. Importantly, the victims of your offending have been spared the ordeal of having to give evidence. You have accepted responsibility and have facilitated the course of justice. These are matters that serve to reduce the sentence that I would otherwise have imposed.
Remorse
82I accept that your pleas of guilty also reflect a degree of remorse on your part. Your remorse was also demonstrated at the time of your interview with Mr Joblin and was noted by your character witnesses and referees. I am prepared to accept that you are genuinely remorseful for your conduct.
Rehabilitation
83In my opinion, you clearly have prospects of rehabilitation despite continued drug use and the subsequent offence. Whilst it is difficult to predict the future, I consider that your prospects of rehabilitation are reasonable. I say that having regard to the following factors:
–You are still a young man.
–You have very little by way of prior convictions.
–You have just become a father and the birth of your daughter should provide you with strong incentive to rehabilitate.
–You have a supportive partner and family.
–You have a very good work history and a skill set that enables you obtain work without much difficulty.
84What will destroy those prospects, however, is if you continue to use illicit drugs.
General Deterrence
85In sentencing you, general deterrence must be given considerable weight. Incidents of road rage are not uncommon in our community. The penalty to be imposed must be such as to send a clear message to others who are minded to behave in this way that if they do they will be met with stern punishment.
Specific Deterrence
86The penalty I impose must also be such as to deter you from engaging in any further criminal behaviour. It should be sufficient to bring home to you the consequences to you of offending and the need for you to reform.
Denunciation
87Your conduct must also be publicly denounced. It was outrageous and dangerous behaviour perpetrated on a young mother and her two young children who were out innocently celebrating a birthday.
Protection of Community
88I must also have regard to the protection of the community in sentencing you. That may be best achieved having regard to the considerations of deterrence, but also structuring a sentence that allows for your rehabilitation.
Current Sentencing Practice
89I am required by the Sentencing Act to have regard to 'current sentencing practice'. I have had regard to the cases that were referred to in the course of the plea hearing, as well as others, in an effort to discern current sentencing practices for these offences. Current sentencing practice, however, is but one of the factors that I am required to take into account.
90A review of the cases provides limited assistance to the sentencing exercise I must perform given the wide manner in which offences of this type can occur. However, many of those for reckless conduct endangering life involving the use of cars do involve actual sentences of imprisonment of sufficient duration to preclude the imposition of a community corrections order.
Totality Principle
91The indictable offences to which you have pleaded guilty - that is Charges 1 and 2 on the indictment - each occurred as a result of your extreme anger towards the driver of the victim's car. Your offending on Charge 1 came to an end at the police station but you then got out of your car and continued your terrifying conduct towards the victims by jumping on and damaging their car. There must be some cumulation in penalty but I will apply the principle of totality in determining your sentence.
Conclusion
92At the conclusion of the plea hearing on 29 May of this year, I agreed to have you assessed for a community corrections order. I did so informing your counsel that I was far from decided on penalty and that having you assessed was being done for pragmatic reasons, there being an opportunity to have you assessed at court on that day rather than having to later arrange an appointment and assessment if I thought that the penalty sought by your counsel was within range.
93In all of the circumstances, I have come to the view that a combination of gaol and a community corrections order would not be sufficient given the objective seriousness of your offending and each of the sentencing factors to which I am required to have regard.
94Mr Harry, would you please now stand?
Sentence
95On Charge 1, you are convicted and sentenced to three years' imprisonment.
96On Charge 2, you are convicted and sentenced to 10 months' imprisonment.
97I direct that four months on Count 2 be served cumulatively on Count 1. This makes a total effective sentence of three years and four months.
98In consideration of my findings as to your prospects for rehabilitation, that is that they are reasonable provided you cease the use of illicit drugs, I am prepared to set a relatively low non-parole period. The non-parole period I fix is 22 months.
99Pursuant to s.89A(1)of the Sentencing Act, your licence is cancelled and you are disqualified from driving for a period of 22 months from today. I make the order in respect of Charges 1 and 2 on the indictment.
100On the charge of driving with more than the proscribed concentration of alcohol and drugs in your system, you are convicted and fined $1500. Your licence is also cancelled in respect of this offence and you are disqualified from driving for a period of 16 months from 20 May 2018. I note that you were then served with a s.51 notice immediately suspending your licence.
101I am not going to suspend your licence for longer than that as I consider it important that upon your release you be in a position where you can return to work as soon as possible. You will, of course, have to reapply for your licence.
102But for your pleas of guilty, the sentence I would otherwise have imposed is one of four years with a non‑parole period of 32 months. Are there any other orders that are sought?
103MS COOMBES: Yes, Your Honour. There was an application for a forensic sample to be taken and also disposal orders were sought - sorry, I beg your pardon. There were no disposal orders. 464ZF, Your Honour.
104MR CAMERON: It is by consent, Your Honour.
105HIS HONOUR: Yes. Thank you. Mr Harry, pursuant to s.464ZF of the Crimes Act you are required to undergo a forensic procedure for the taking of a scraping from your mouth in accordance with subdivision 30A of the Crimes Act until a sample of sufficient standard is obtained for the placement on the database. I make the order having regard to the seriousness of the circumstances of your offending and also that the order made is with your consent.
106I have to inform you that if at the time of a request being made you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted. No other matters?
107COUNSEL: No, Your Honour.
108HIS HONOUR: Thank you. You may remove Mr Harry. We will adjourn the court.
109MS COOMBES: May it please the court.
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