Director of Public Prosecutions v Jackson

[2023] VCC 177

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT SHEPPARTON

KOORI COURT DIVISION

CR 22-00020

DIRECTOR OF PUBLIC PROSECUTIONS

v

IAN JACKSON

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Shepparton
DATE OF HEARING:	13 February 2023
DATE OF SENTENCE:	14 February 2023
CASE MAY BE CITED AS:	DPP v Jackson
MEDIUM NEUTRAL CITATION:	[2023] VCC 177

REASONS FOR SENTENCE

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Subject:  Criminal Law Sentence

Catchwords:             Koori Court Jurisdiction – Dangerous or negligent driving while pursued by police – Damaging property – Aggravated offence of recklessly exposing an emergency worker to risk by driving – Damaging an emergency service vehicle – Possession of a drug of dependence – Handling stolen goods – Theft – Related summary offences – Remorse - Application of Bugmy principles – Participation in Koori Court sentencing conversation – Totality

Legislation Cited: Sentencing Act 1991

Cases Cited:            Bugmy v The Queen 249 CLR 571

Sentence:Total effective sentence of three years’ imprisonment with a non-parole period of 16 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr J. Kantor	Emma Turnbull Lawyers

HIS HONOUR:

1Ian Jackson, you have pleaded guilty in the County Koori Court at Shepparton to the following charges:  dangerous or negligent driving while pursued by police, which carries a maximum penalty of three years' imprisonment; damaging property, 10 years, maximum; aggravated offence of recklessly exposing an emergency worker to risk by driving, which carries a maximum penalty of 10 years' imprisonment; damaging an Emergency Services vehicle, which carries a maximum of five years' imprisonment; possession of a drug of dependence, which carries a maximum penalty of five years' imprisonment or one year for personal use; handling stolen goods, 15 years, maximum; theft, 10 years, maximum.  They were all the charges on indictment.

2You also were dealt with for relevant summary offences:  unlicensed driving, which has a maximum of six months' imprisonment; possessing a controlled weapon, one year maximum; dealing with property suspected of being the proceeds of crime, two years, maximum; possess a prohibited weapon, two years, maximum; and possess cartridge ammunition, which has a
40-penalty-unit fine as its maximum penalty; and finally, resisting an emergency worker on duty, which has a six-month imprisonment maximum.

3The aggravated offence of recklessly exposing an emergency worker to risk by driving is a category 2 offence, and as such, this court must impose a custodial order unless an exception applies.  There was no exception argued, and indeed, it was conceded and entirely appropriate that imprisonment is the outcome on the charges before me.  You have admitted relevant prior convictions including convictions for driving offences and serious violent offences such as armed robbery.

Circumstances of Offending

4The circumstances of your offending are set out in detail in the summary of prosecution opening, which was Exhibit A on the plea and forms part of these reasons for sentence.  I do not propose to recite the detail contained in that opening in these remarks.  The serious aspects of your offending concern a protracted police pursuit during which you engaged in various driving offences, exposing police to a high risk of danger to their safety.

5You also drove in a very dangerous manner.  Your driving was simply outrageous.  You collided with other vehicles.  You deliberately rammed police vehicles.  Driving such as yours carries a high risk of death or serious injury to innocent bystanders as well as officers performing their lawful duty.  It is only through good fortune that this was avoided in your case.  You could so easily have been sitting here on more serious charges, facing a longer term of imprisonment for the same driving conduct if the consequences had been different, as they so easily could have been.

6During the sentencing conversation, Aunty Pam Pedersen challenged you in relation to this when referring to one of your victims.  She said, 'You could have killed that girl'.  Those words should ring in your ears.  A man of your years and ability should not have behaved in such reckless and dangerous driving no matter the circumstances or the reasons.

7You endeavoured to avoid apprehension but were eventually apprehended in the course of the investigation in relation to this matter.  A number of items were located in your possession which form the basis of some of the charges before me, including knuckledusters, a substantial amount of cash, shotgun cartridges, a bullet, Ziploc bags, scales, a glass ice pipe.  A collection of items like that tells the story of where you were at in your life at that point in time.  You are also before this court for dishonesty matters which, on the face of them, would seem to be related to the lifestyle you were engaging in at the time of the offending.

8When interviewed after your apprehension, amongst a number of answers, you gave the following answers to some of the questioning.  In relation to the pursuit, you said you just had one intention:  the obvious goal was not to get caught.  You went on to say that you drove 'as dangerous as possible' in the hope police would call off the pursuit.  You drove at least 100 kilometres per hour, on your assessment, in Sunbury Road.  You might have reached 180 at one point.  You could not remember exactly what happened with the ramming, but you recalled there was impact and that you were under the influence of methamphetamines, which you described as your medicine used to ‘suppress [your] bullshit’.

9They were your words, but they sit comfortably alongside the opinions of Mr McKinnon, the psychologist who has prepared two reports in relation to you.  Mr McKinnon is an experienced psychologist with strong insights into young men such as you with the problems you have had and the underlying issues you face and the background you have experienced.  Your assessment as to your methamphetamine use, as I have said, sits alongside the observations of others that you have had a traumatic past and that there are matters personal to you and drivers underlying your behaviours and drug use that you need to address.  Fortunately for you, you have been working on them to some extent whilst in custody.

Objective Gravity of Offending

10I find the most serious aspects of your offending, in combination, are as follows.  You were unlicensed in a stolen vehicle, and you were intoxicated.  I say 'in combination' because those layers, upon each other, present a risk.  Not only that; you were then pursued by police.  You deliberately drove at excessive speeds and in a dangerous manner to get away from police.  Again, all of those things on top of each other add up to danger for the community and for police.

11You went through a red light.  Other drivers were taking evasive action.  When boxed in by police, rather than give yourself up, you chose to try and ram your way out.  This was extremely frightening for the civilian driver in particular, but no doubt for others.  She describes her car being rammed four to five times.  You also placed in danger at least two police officers who were out of their car in the expectation that you would yield to being boxed in.  It was frightening for them also.  They were in fear of being crushed by a vehicle.

12Members of the public going about their business and police officers on duty should not have to contend with individuals like you behaving in such a reckless and dangerous manner because you are affected by substances and are not coping with your personal circumstances and engaging in crime.

13It is completely self-indulgent and selfish to place people in danger because you do not want to be apprehended by police and you just do not care about yourself or anyone else, or at a deeper level, you do not want to face up to and deal with the personal problems underlying your use of drugs and your behaviours.  I have to impose a sentence that deters you but also others who might have the same ideas.  I must impose a sentence that adequately denounces your conduct and protects the community from future like episodes.

Personal Circumstances

14Turning to your personal circumstances, you had little stability in your early life.  You were exposed to high levels of violence and alcohol abuse in your formative years.  You witnessed siblings being seriously injured by your stepfather at a tender age.  You were a victim of assault yourself.  You moved home constantly.  You and your mother and siblings often sought shelter in women’s refuges.  That summary only touches upon the trauma that you were exposed to, and there are more detailed accounts in the psychological material and in some of the reference material that better depicts the fear you must have had as a child hiding with your mother and having to evade the violence.

15Your counsel described your upbringing as severely and chronically disadvantaged, characterised by family violence at the hands of your stepfather.  I accept this characterisation.  The prosecution accept that the Bugmy v The Queen (“Bugmy”) principles have application in your case.[1]  I also accept that Bugmy mitigation is appropriate in your case, and your moral culpability for the offending before me needs to be assessed in this light, in light of those formative factors, in light of those factors which have led you to gravitate towards drug use.  Drug use, I accept, played a significant role in the offending before me.

[1]Bugmy v The Queen (“Bugmy”) 249 CLR 571.

16You attended many different schools due to moving constantly.  You also had difficulties at school fitting in with your Aboriginal contemporaries, and this is touched on in Mr McKinnon's reports also in relation to your lighter complexion being a source of alienation from some of your contemporaries.  Sense of identity, loss of identity at times, and feeling alone were part and parcel of your experience growing up.  You were homeless by 14.

17As so many others who share your experience do, you gravitated towards substance abuse and negative peer influences and behaviours at a young age.  As I observed during the plea hearing, unlike many others, you have the skills and intelligence to leave all of that behind you and become a productive member of your community – to become, as Uncle Greg James urged during the sentencing conversation, a leader and an inspiration to your family.

18Your counsel provided detailed written submissions, which were Exhibit 1 on the plea, and summarised – all of which I accept.  He went into your Aboriginality and background, which I do not need to go into here, but you are a proud Aboriginal man from the Yorta Yorta community, which you are connected with.  You also have connections to the Barkindji mob through your father's line, but you have been someone who has engaged with Mooroopna Aboriginal Co-Operative, Rumbalara Group.

19You have got a number of relatives that work in community organisations in this region, and Uncle Greg James – which I will return to when I cover the sentencing conversation – brought up a number of those names and urged you to seek some sort of strength and inspiration from your family line and your family connections.

20You have spent most of your life in the Shepparton area.  You have a close relationship with your mother, Dina.  You have got three siblings:  Brett, Kelly and Trudy.

21A letter was provided to the court from your long-term partner, Jennifer MacGregor, and Ms MacGregor attended the hearing and participated in the sentencing conversation.  It was clear to all in the court that Ms MacGregor's support for you and evidence on your behalf is a powerful matter in this case.  Ms MacGregor provides for you a beacon of support and stability, love and understanding that bodes well for your rehabilitation if you are ready to embrace it.

22You have two children:  Liliana, 11, and Mason, 10.  They now reside in Queensland.  You have reconnected with your children since coming into custody, and that is another matter which should provide motivation for you on parole to continue your rehabilitation.

23As I have mentioned, you have links with the Aboriginal Co-op in Mooroopna since childhood.  Your Uncle Len Jackson was the manager, and your Uncle Larry Jackson has also worked there.  During the sentencing conversation, mention was also made of Valda Jackson and other people connected to you such as Pam Jackson and Damian Morgan, who is a rehabilitation worker with the Koori community.  These are all sources of inspiration and strength for you, past and present, who you are able to draw upon.

24You completed Year 11 VCAL at Greater Shepparton Secondary College, and you have attained a certificate in furniture making.  You have undertaken
pre-apprenticeships in carpentry and landscaping, and you have a goal, I was told, to commence a traineeship in civil construction through Wadamba, and I received a letter of support from Wadamba in the materials that were filed on your behalf.

25That education level and engagement with trade training is a matter which can set you apart and is a matter which I referred to when I was saying you have some things going for you which many others who come before this court for similar offending sadly lack, so there are prospects for you to get employment, be engaged in training and make something of yourself.  You have had previous employment, I was told, in carpentry, landscaping, industrial cleaning, furniture delivery and packaging.

Other Factors in Mitigation

Mental Health

26Two psychological reports were filed, both authored by Mr McKinnon at different times, the most recent being January this year.  I will not recite all the aspects that are relied upon by your counsel save to say I accept what has been advanced at paragraph 26 in Exhibit 1, the written submissions as to the vulnerabilities in your history, and I accept the finding of complex
post-traumatic stress disorder, and I also accept what is said at paragraph (i) of paragraph 26 in Exhibit 1 in relation to the burden of imprisonment as it continues - noting that you have been in custody for over 600 days at present, the concern that a lengthy period of incarceration will become very burdensome on your psychological well-being.  As I say, I accept those matters.  It does not serve the purpose of these sentencing remarks to recite them in detail herein.

Rehabilitation

27Amongst the documents relied upon, I have touched on the two psychological reports of Mr McKinnon.  There was a letter of support from Andrew Vella from Wadamba; a letter of support from Shane Roberts, Aboriginal
well-being officer, Marngoneet Correctional Facility; urine drug screens which supported what I was told about your sobriety over your period of custody; and your completion of two courses, Inside Parenting and Beyond Survival:  Aboriginal Men's Cultural Healing Program; and of course, the important letter from Jennifer MacGregor.

28In particular, the courses you have engaged in and what has been reported as to your remorse and change of attitude tell the court that you are prepared to work on yourself, that you realise there are things that need to be worked on and you have been trying to do the work that is required in order to rehabilitate, and that is something that I have taken into account in your favour when assessing your prospects of rehabilitation.

Participation in Koori Court

29You participated in the sentencing conversation and engaged fully.  As I have said, you were joined by your partner, Jennifer MacGregor, at the table, and Ms MacGregor spoke candidly about your offending and your changed attitude.  As I have noted, the stability and support offered by Ms MacGregor is substantial.

30Uncle Greg James emphasised how impressive that support was.  In a powerful and passionate exchange, he told you that you need to start showing maturity, you need to start thinking about your legacy and that you need to be a person who prospers in your community and becoming an inspiration as a father, as a man, as a parent.

31You were emotional at different stages during the sentencing conversation, which reflected how genuine you were about the process and how engaged you were with the sentencing conversation.  When challenged in relation to the future and your partner, you became particularly emotional and spoke of her as your reason to live and before you met her, you wanted to kill yourself.  These were poignant moments in the sentencing conversation.

32Aunty Pam, as I have said, challenged you in relation to the danger your driving presented, and you accepted that you were only thinking of yourself at the time.  Aunty Pam also urged you to embrace the opportunity offered in the future of the support and stability of a family home with Ms MacGregor.

Totality

33I have taken into account and accept what is referred to as the totality in relation to the entire period of imprisonment you have been in notwithstanding that it is the past 317 days that can be credited as pre-sentence detention in relation to this matter.  I take into account in a more general way that you have been in custody for over 600 days.  The hardship in custody in relation to you is a matter I also take into account, having regard to the matters raised by Mr McKinnon.

Remorse

34I also accept that you have a level of appropriate remorse for your conduct.  You did make significant admissions, and the materials in support, particularly from Mr Roberts, support that finding of remorse, and also the report of Mr McKinnon at page 8 supports my finding that you are remorseful for your offending.

Plea of guilty

35You have pleaded guilty, and that is a significant matter to take into account in relation to your sentence in a mitigatory way.  You have advanced the facilitation of justice, and particularly in these times when court lists are still in a state of crisis due to the backlog of the pandemic, that is a significant matter.  I also take into account that you have been in custody for 600 days under conditions that have flowed from the pandemic, which are particularly onerous.

Prospects of Rehabilitation

36In relation to your prospects of rehabilitation, I am guarded about your prospects, but I do consider them to be reasonable if you access what is available to you.  The keys, of course, are your embracing in a positive way the support offered by Ms MacGregor, but alongside that, drug and alcohol counselling and support to continue to address your underlying triggers and personal issues, engaging with positive role models, Elders and leaders, and drawing on your strength and purpose as a Yorta Yorta man, as was urged by Uncle Greg and Aunty Pam.

37I also must, as I have said, impose a sentence which appropriately denounces your conduct, deters others, deters you and protects the community.

Sentence

38I sentence you as follows, Mr Jackson. 

39On Charge 1, dangerous or negligent driving whilst pursued by police, you are sentenced to 18 months' imprisonment.

40Charge 2, damaging property, six months' imprisonment.

41Charge 3, aggravated offence of recklessly exposing an emergency worker to risk by driving, two years' imprisonment.

42Damaging an Emergency Services vehicle, six months' imprisonment.

43Possession of a drug of dependence, one month.

44Handling stolen goods, nine months' imprisonment.

45Theft, six months' imprisonment.

46Unlicensed driving, one month imprisonment.

47Possess controlled weapon, one month.

48Deal with property suspected of being proceeds of crime, four months' imprisonment.

49Possess a prohibited weapon, three months' imprisonment.

50Possess cartridge ammunition, you are fined $500.

51Resisting an emergency worker on duty, two months' imprisonment.

52I have applied s 16(1A) in displacing the presumption of concurrency in relation to Charges 3 and 4.[2]

[2] s 16(1A) Sentencing Act 1991

53I make the following orders for cumulation. 

54Six months of the sentence imposed on Charge 1 is to be served cumulatively on the base sentence, which is Charge 3. 

55Two months of the sentence imposed on Charge 2, two months of the sentence imposed on Charge 4, and two months of the sentence imposed on Charge 6 are to be served cumulatively on each other and on the sentence imposed on Charge 3 and other sentences imposed.

56That makes a total effective sentence of three years' imprisonment. 

57I set a non-parole period of 16 months, and I declare that you have served
pre-sentence detention of 317 days.

58Pursuant to s6AAA, if it were not for your pleas of guilty, I would have imposed a sentence of four years, total effective sentence, with a non-parole period of two and a half years.

59Pursuant to s89(1), your licence is cancelled and disqualified for 24 months from today.

60To make it clear, other than those orders for cumulation, the sentences imposed are to be served concurrently.

61I make the orders for forfeiture, disposal and compensation as drafted, noting they were consented to by the defence.

62Now, is there anything else, anything that I have overlooked, Mr O'Doherty?

63MR O'DOHERTY:  No, Your Honour, no.

64HIS HONOUR:  No.  Mr Kantor, that is all clear?  Mr Jackson, on my reckoning, in about five months you will be eligible for parole, so I just urge you to do everything you can to get yourself ready and continue on the path you are on, and good luck for the future.  Yes, we will adjourn the court.

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