Director of Public Prosecutions v Jordan
[2024] VCC 1470
•16 September 2024.
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02341
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARLEY JORDAN |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 April 2023; 9 September 2024 | |
DATE OF SENTENCE: | 16 September 2024. | |
CASE MAY BE CITED AS: | DPP v Jordan | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1470 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Theft – Handling stolen goods – Criminal damage – Attempted theft – Intentionally exposing an emergency worker to risk by driving – Damaging an emergency service vehicle – Plea of guilty – Worboyes – COVID-19 pandemic.
Legislation Cited: ss 5(1), 6AAA, 5(2H)(e) Sentencing Act 1991 (Vic).
Cases Cited:Phillips v The Queen [2012] VSCA 140; Worboyes v The Queen [2021] VSCA 169.
Sentence: Total Effective Sentence of 14 months’ imprisonment, with a non-parole period of eight months’. Ancillary orders made in the terms sought. Licence cancelled and disqualified for a period of 24 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms. S. Tatas | The Office of Public Prosecutions |
| For the Accused | Ms H. Anderson | Gallant Law |
HER HONOUR:
1Harley Jordan, you have pleaded guilty to the following charges:
(a) Charge 1 - Theft;
(b) Charge 2 - Handling stolen goods;
(c) Charge 3 - Criminal damage;
(d) Charge 4 - Attempted theft;
(e) Charge 5 - Intentionally exposing an emergency worker to risk by driving (aggravated offence); and
(f) Charge 6 - Damaging an emergency service vehicle.
2You have also agreed to this Court hearing, and have pleaded guilty to the following summary charges:
(a) Summary Charge 21 - Unlicensed driving;
(b) Summary Charges 23 and 27 - Committing an indictable offence on bail (x2);
(c) Summary Charges 32 and 33 - Contravening a conduct condition of bail (x2); and
(d) Summary Charge 34 - Driving whilst exceeding the prescribed concentration of drugs.
Summary of offending
3A summary of your offending is outlined in the prosecution opening of 14 April 2023 and marked as Exhibit A on the plea hearing.
4You were 30 years of age at the time of the offending. You used a wheelchair to move around as a result of extensive head and leg injuries, suffered in a motor vehicle collision in 2020.
5On 18 August 2022 the owner of a black 2016 Nissan Navara parked his vehicle at an address in Laverton North. He returned a few hours later to discover his vehicle had been stolen and reported the matter to police.
6On 20 August 2022 the owner of a black 2016 Nissan Navara parked his vehicle in the rear yard of a Glenbarry Road address in Campbellfield. A couple of days later he discovered both the front and rear registration plates had been stolen.
7In the early hours of 25 August 2022, you and your and co-offender, Lochlan Tatterson, were on Arthur Street, Melbourne between Queens Road and St Kilda Road. You were sitting in the driver’s seat of the stolen Nissan Navara, bearing the stolen registration plates, while Mr Tatterson was seated in the front passenger seat (Charge 1 – Theft; Charge 2 – Handling stolen goods; Summary Charge 27 – Committing an indictable offence on bail).
8You had parked the stolen Nissan Navara in an angled parking space, next to a White Nissan Patrol.
9At about 4:15AM on 25 August 2022 a report was made to triple zero of a male in the driver’s seat of a black utility and a second male with a flashlight inside a white four-wheel drive. Details as to their location were also given.
10Police vans SSK311 and SSK310 were dispatched by the Police Communications Centre to attend the location and commenced patrolling for the males and their vehicle.
11Mr Tatterson exited the stolen Nissan Navara and approached the Nissan Patrol. He smashed the rear passenger window before sitting in the driver’s seat and using a black and red handled screwdriver to force the ignition and attempt to turn the engine on (Charge 3 – Criminal damage; Charge 4 – Attempted theft).
12As Mr Tatterson attempted to start the Nissan Patrol, he activated a dash camera mounted near rear windscreen, which commenced an audio-visual recording.
13Mr Tatterson had a conversation with you through the driver’s window of the stolen Nissan Navara, then jemmied open the rear tool compartment of the Nissan Navara and returned to the driver’s door of the Nissan Patrol.
14At about 4:21AM SSK311 and SSK310 arrived on Arthur Street, approaching from Queens Road. SSK310 was driven by First Constable Paul Puser with passenger Constable Jacob Negri. SSK311 was driven by First Constable Vadim De Waart with passenger First Constable Nicholas Munday. They were conducting uniform patrol duties in police divisional vans.
15SSK310 was driving in front of SSK311 when First Constable Puser observed Mr Tatterson standing next to the Nissan Patrol. Mr Tatterson observed police approaching behind him and ran around the front of the Nissan Patrol and climbed into the passenger seat of the stolen Nissan Navara. First Constable Munday observed Mr Tatterson entering the Navara and exited SSK311.
16First Constable Puser slowed SSK310 and positioned it behind the stolen Nissan Navara to block the vehicle in. However, First Constable Puser observed the reverse lights of the stolen Nissan Navara engage and accelerated forward in fear that the stolen Nissan Navara would reverse directly into the police van.
17You accelerated the stolen Nissan Navara backwards and rammed into the rear driver’s side panel of SSK310. While this was occurring, First Constable Munday ran to the driver’s door of the stolen Nissan Navara, opened the door, and demanded that you exit the vehicle.
18You continued to reverse into SSK310, pushing it forwards towards St Kilda Road and forcing First Constable Munday to run alongside the stolen Nissan Navara to avoid being struck by the open driver’s door.
19First Constable Puser braked heavily to stop the stolen Nissan Navara pushing the van back any further. He and Constable Negri remained in SSK310 for safety as you continued to reverse the stolen Nissan Navara, spinning the wheels.
20First Constable De Waart, observing the unfolding incident, drove SSK311 directly at the stolen Nissan Navara, impacting the front bumper at low speed to block the stolen Nissan Navara between the two police vans.
21You started yelling abuse at First Constable Munday while Mr Tatterson, still seated in the passenger seat, leant over you and attempted to stab First Constable Munday with a black and red handled screwdriver about five times.
22First Constable Munday became immediately fearful of being stabbed, so retreated to SSK311, obtained a large can of Oleoresin Capsicum (OC) spray, and notified police communications of an urgent requirement for backup.
23You aggressively accelerated forward into the front of SSK311. First Constable De Waart applied the handbrake and placed the van into its parking gear to stop the stolen Nissan Navara pushing the van backwards.
24First Constable De Waart attempted to exit SSK311 via the driver’s door, however, you continued to accelerate the stolen Nissan Navara forward, ramming SSK311 backwards approximately one metre.
25As First Constable De Waart made a second attempt to exit SSK311, you accelerated again ramming the van backwards a further two metres.
26First Constable Munday approached the stolen Nissan Navara, opened the driver’s door and deployed the OC spray throughout the vehicle. OC spray directly covered you and Mr Tatterson, however, you continued to accelerate the Navara backwards and forwards, spinning the rear wheels from force and acceleration (Charge 5 – Intentionally exposing an emergency worker to risk by driving (aggravated offence); Summary Charge 21 – Unlicensed driving; Summary Charge 23 – committing an indictable offence on bail).
27First Constable De Waart approached the front passenger door of the stolen Nissan Navara. Mr Tatterson opened the door, exited, and brandished the screwdriver aggressively towards him. Mr Tatterson resisted arrested and was ultimately subdued by police and placed in handcuffs.
28Police placed you onto the ground where you were arrested and handcuffed.
29Both SSK310 and SSK311 sustained substantial damage from being rammed (Charge 6 – Damaging an emergency service vehicle).
30You and Mr Tatterson were provided with after care for the effects of OC spray.
31You were transported by ambulance to the Alfred Hospital for assessment and Mr Tatterson was transported to the St Kilda Police Station for interview.
32Police Crime Scene Officers attended and forensically processed the scene.
33A number of items outlined in the prosecution opening at paragraphs 40 and 41 were seized from the scene and the stolen Nissan Navara.
34You were admitted to the Alfred Hospital under police guard on 25 August 2022. On 29 August 2022, while still in hospital, soon after the commencement of your record of interview, you advised police you suffered from an acquired brain injury and the interview was immediately concluded.
35On 31 August 2022, you were transported from The Alfred Hospital to a secure unit at St Augustine’s Hospital, Melbourne.
36At the time of the offences, you were subject to the following bail conditions:
(a) Not to drive a motor vehicle (Summary Charge 32 – Contravene a conduct condition of bail);
(b) To present during the curfew period between 10.00pm and 7.00am unless in the company of your mother (Summary Charge 33 – Contravene a conduct condition of bail); and
(c) A static residential address.
37Forensic analysis of a blood sample taken from you at The Alfred Hospital on 25 August 2022 revealed the presence of methylamphetamine (Summary Charge 34 – Driving whilst exceeding the prescribed concentrations of drugs).
Gravity of the offending
38The gravity of your offending is indicated by the maximum sentences for the offending.
39Charge 5 of intentionally exposing an emergency worker to risk by driving (aggravated offence) is a Category 2 offence. The Court must impose a sentence of imprisonment and must not attach to such a term of imprisonment a Community Corrections Order (CCO) unless there are substantial and compelling circumstances that are exceptional and rare.[1]
[1] s 5(2H)(e) Sentencing Act 1991 (Vic).
40Charge 5 is inherently a serious offence as indicated by its maximum penalty. It is also a rolled-up count and I take into account the full circumstances of your offending. It is constituted by driving the stolen motor vehicle in the vicinity of several emergency workers on duty, intending to expose them to a risk of safety. Vehicle SSK310, with officers Puser and Negri, initially positioned itself behind you to block you in. On several occasions during this one episode you accelerated, ramming into the police vehicles. At one point in time, officer Munday ran towards you, opened the door and demanded you exit. Instead of complying, you continued to reverse into SSK310, pushing it forwards towards St Kilda road and forcing officer Munday to run alongside the stolen car to avoid being struck. During efforts to block in the stolen vehicle, you continued to accelerate and ram into the police cars.
41Even at the point where Officer Munday returned, approached you and deployed OC, you continued to accelerate the car backwards and forwards, spinning the rear wheels with force and acceleration.
42Your conduct was obviously unacceptable, dangerous and inherently risky. The applicable penalties are structured to protect, in this case, members of the police force that should not have to put up with this type of conduct and who were simply carrying out their duties. General deterrence and denunciation are important sentencing considerations.
43On your behalf it was submitted that your offending is objectively a low-mid level example of this type of offending. The offending was unplanned, no officer was injured, it was overall of a short duration and occurred because you panicked and were trying to get away. Your offending did not include other factors that would render this a more serious example of this charge. There was no high speed, no police chase, it was not protracted, and there were no members of the public around at the time.
44Charge 6 is also a rolled-up count, representing the damage you caused to both emergency vehicles.
45At the time of the offending, you were unlicenced, on bail at the relevant time and also in breach of conduct conditions of bail, namely to not drive a motor vehicle and abide by a curfew.
46In my consideration of the substantive matters I have taken these factors into account and therefore intend to impose concurrent sentences to avoid any double punishment.
47At the time of the offending you report using methamphetamines. While no excuse, I note that according to Clinical Neuropsychologist, Sam Humphrey, this likely further negatively impacted your compromised cognitive functioning.
Procedural history
48Your case has a protracted history. As already noted you were initially remanded in custody.
49On 26 April 2023 your plea hearing commenced and ultimately submissions were made centred around the Category 2 regime and whether an exception was enlivened in your case.
50Ultimately, at that time the Court considered that a deferral of sentence was appropriate to assess your rehabilitative prospects. On 6 June 2023 you were released on bail on a deferral, with conditions, including CISP supervision.
51Thereafter, on several occasions you appeared before the Court for judicial monitoring. You remained on bail, engaged with CISP and other services until your remand on 23 May 2024. On 9 July 2024 your bail was then formally revoked on this matter.
52Your total pre-sentence detention for this matter is 205 days which is comprised of the following:
·136 days – 25 August 2022 to 6 June 2023 (286 days less 150 days declared in the Magistrates Court on 7 December 2023)
·62 days – 9 July 2024 - 9 September 2024 (day of plea hearing).
53You have several outstanding Magistrates’ Court matters awaiting resolution.
Personal circumstances
54You are 32 years of age and at the time of arrest, you were residing with your mother in Sunbury. You were born in Queensland and had a disadvantaged and unstable childhood, marked by an exposure to family violence and drug use by your father. Your parents separated when you were young and you lived with your paternal grandparents. At age 11 you moved to Victoria to live with your mother and stepfather. You rebelled, there was conflict and you left school at Year 8.
55Your drug use commenced at the early age of 14 and has been an ongoing issue since. At approximately 20 years of age, you had a child, and were in a relationship, though it is one that you have described as being ‘toxic’. Your son is now 11 years of age and you have ongoing contact with him.
56At approximately 25 years of age, you went into drug rehabilitation and on your return home, discovered your partner had left with your child. Following this, your drug issues worsened and you found yourself in a cycle of offending, drug use, depression and being in and out of custody.
57In September 2020, at the age of 28, you almost died in a motorbike collision which has had life changing consequences. You spent months in hospital and underwent multiple orthopaedic operations and a further period of rehabilitation at the Royal Talbot Rehabilitation Centre. You were discharged from there after contracting a suspected staph infection to your leg to reduce further spread of the infection. You are now a paraplegic confined to a wheelchair full time, with limited mobility for short periods of time. You also have a traumatic brain injury.
58Your injuries included subdural haematoma, spinal cord contusion, shoulder dysfunction, wrist and hand fractures, respiratory failure and lower limb fractures with ongoing chronic swelling and infection[2] .
[2] Royal Melbourne Hospital Discharge Summary of 20 November 2020.
59After the motorbike collision and in the community you have experienced various admissions to hospital following falls, infections, and cellulitis.
60In the lead up to your offending, in the community you had the support of your mother and also a friend turned partner. The relationship with your partner broke down and you struggled to deal with this, along with the significant changes to your life. The medical treatment and support you were receiving at home was more limited due to COVID-19 restrictions. While you were in receipt of TAC funding your mother had apparently been incorrectly advised that you were not eligible for NDIS in addition to TAC. It is within this broad context where you were struggling to cope that you relapsed into drug use and offended in 2022, until your remand on 25 August 2022. Psychologist Lis Jackson noted in her report of 10 November 2022 that the impact of the accident resulted in a psychiatric decline increasing your risk of worsening substance abuse problems as a means of coping with your symptoms.
Prior criminal history
61You have a relevant and an extensive prior criminal history and have appeared before the Courts in relation to motor vehicle offences, drugs, violence, weapon offences and breaching court conditions. You have received a variety of dispositions over the years and have served multiple custodial sentences.
Factors in mitigation
62Initially on your behalf your Counsel submitted that the exception under the relevant Category 2 regime was enlivened, due to substantial and compelling circumstances that were exceptional and rare. Given the change in your circumstances and your return to custody your Counsel no longer relies upon an exception. However, she continues to rely upon these factors as compelling and unique circumstances relevant to sentencing.
Physical health and cognitive functioning
63As already noted, the offending occurred on 25 August 2022 and you were in custody for a substantial period of time before being released on bail. Given the seriousness of your health issues, that period in custody, along with your continuing remand, it was submitted was and is more onerous and punitive than for an accused person who is otherwise healthy and mobile.
64The evidence tendered on your behalf supports that you suffer significant disabilities and a severe traumatic brain injury.
65A letter from physiotherapist, Paul Ellis, of 14 September 2022, states that because of your acquired brain injury, you experience a number of long-term physical impairments, including:
(a) Reduced strength and movement control;
(b) Reduced dynamic balance; and
(c) Altered muscle tone, including clonus in your right calf muscle.
66He also confirms that your orthopaedic injuries from the accident include left shoulder dysfunction, left wrist and hand fractures and left lower limb fractures with ongoing chronic swelling and infection.
67You have minimal function in the left side of your body and you continue to suffer significant swelling in your left leg that is fitted with compression bandages.
68When you were assessed by neuropsychologist Dr Humphrey in January 2023 you showed clear evidence of a severe traumatic brain injury (TBI) which was permanent and enduring. You displayed broadly stable cognitive function. There was evidence of slowed processing speed and executive dysfunction with this secondarily impacting the efficiency of your new learning. Your intellectual abilities fell within the Borderline range overall (Full Scale IQ = 75) with some variation. Tasks involving language based intellectual abilities, including your vocabulary and general knowledge, fell within the Low Average range as did tasks involving visual based problem solving and spatial abilities.
69Dr Humphrey also opined that you required assistance with all aspects of your daily function due to your physical and cognitive difficulties. He noted that prior to your incarceration you were receiving services from the TAC, including physiotherapy, occupational therapy and nursing. Your daily function will be optimised by ongoing services and supports provided via the TAC, which will assist to mitigate the functional impact of your cognitive difficulties.
70Following a further neuropsychological assessment on 29 July 2024 the additional matters were noted:
(a) Measures of intellectual abilities fell within the Low Average range overall … at a level consistent with premorbid estimate and your previous assessment (at [21]).
(b) On current neuropsychological review, you displayed broadly stable cognitive function compared to the previous assessment completed in January 2023. You again showed clear evidence of a severe TBI (at [29]).
(c) Given it has been almost four years since the accident, your noted cognitive impairments will be permanent and enduring. As a result of the severe TBI, you continue to display a range of cognitive deficits which are likely to impact your decision making and offending behaviour. Most notably, you had significant difficulty on a measure of response inhibition, a cognitive process that allows an individual to inhibit or control their impulses and behaviour. This makes it more likely for you to make poor decisions and engage in offending behaviour than someone with normal cognitive function.
71In sentencing you I take into account your personal circumstances and your vulnerabilities and challenges, as outlined in the reports.
Period in custody
72In respect of your ability to cope with prison, Dr Humphrey states in his report of February 2023, at [40]:
‘As a result of the TBI, Mr Jordan displays a range of ongoing cognitive and behavioural deficits which will adversely impact his ability to cope with imprisonment and he will find time in custody more onerous than person without a TBI. For example, Mr Jordan will have difficulty adapting to new situations, will have a reduced ability to learn near information, and will be more vulnerable to the influence of others’.
73In her earlier report of November 2022, Ms Jackson referred to your medical needs as being complex and noted that you were previously in a medical placement in custody that was highly restrictive in regard to movement and access to visits. She foreshadowed ‘future custodial placements will present with the same challenges and will be difficult for Mr Jordan to manage in comparison with a prisoner without the same physical, cognitive, and mental health needs’ [26].
74During your previous period on remand you struggled in custody as your standard prison cell was not modified for wheelchairs, nor was the bed modified for your disabilities, although it was a hospital bed. You are a high falls risk, and have experienced falls in custody, including once when you were found on the floor after one and a half hours calling out for help, and another time when you were found unconscious in your cell. It was submitted previously that you had put on 40 kilograms since you have been in custody. There was very limited opportunity for sunlight or fresh air.
75Your current period on remand is not quite as onerous as your last experience. You have specialised equipment in your room for your breathing as you need oxygen at night, and you also have a Continuous Positive Airway Pressure (CPAP) machine to assist your breathing at nighttime. You also have compression garments and use a lymphedema pump at night time; which importantly assists with reducing swelling and the risk of skin splitting which can cause infection and the risk of blood clots.
76You are in your wheelchair about 90% of the time, and you sleep in a hospital bed that is elevated. You suffer from daily pain but manage most of the time.
77You are on a range of medication including buprenorphine, melatonin, anti-depressant medication, bowel medication (diuretic) and migraine medication.
78You see medical staff at the hospital on a daily basis, including nurses, doctors and a physiotherapist. You have upcoming appointments for a sleep study and a brain scan. To date you have not had the eye surgery that you were scheduled to have in June 2024 due to your remand, however the prison is apparently making enquiries as to whether this surgery can be completed while you are in custody.
79On the evidence, I accept that prison has been, and continues to be, more onerous for you given your serious health issues.
80I also take into account that your initial period on remand for this offending was during the COVID-19 pandemic and that there were restrictive and more onerous conditions in custody. You spent time in quarantine and were the subject of numerous lockdowns. Upon return from various hospital visits, you were required to isolate and quarantine again due to COVID-19 protocols. Your mother also previously gave evidence that she had not been able to see you in person for some nine months because you were not immunised and because of your lung conditions, you were apparently unable to be vaccinated. She spoke to you over the phone every couple of days.
81An additional matter causing you some concern and anxiety, arises from the announced closure of Port Phillip Prison. You understand that no other prisons in Victoria have a hospital unit and you are concerned about moving to mainstream, where you may not be permitted to have some of your specialist equipment.
Deferral of sentence
82As already noted, you were on bail with a condition to comply with CISP for almost 12 months. For the majority of the time, you engaged well, attending most scheduled appointments for case management and AOD counselling and you were described as being ‘open and forthcoming’. You faced some health challenges during this period, including being hospitalised at least twice, following an accident at home caused by the malfunctioning of your electric wheelchair and another time due to an infection to your left leg.
83The reports provided to the Court referred to your efforts, motivations and engagement. Your Counsel submits that given the length of time that you were in custody, your longstanding drug issues, and your periods of hospitalization, the immense progress you made in staying out of custody for so long, and engaging with supports, cannot be understated.
84Ultimately, you experienced an initial drug lapse that you disclosed to your workers. You continued to have lapses, minimised your drugs use, which led ultimately to your further offending seeing your return to custody.
Other factors
Pleas of guilty and remorse
85I have regard to your plea of guilty and the stage at which you pleaded guilty. Your case resolved at the committal mention stage. No witnesses have been cross-examined and the Court has been saved the time and resources of a criminal trial. It is a plea of guilty at the earliest opportunity. I accept your plea has utilitarian value and is indicative of remorse and your willingness to facilitate the course of justice and accept responsibility.[3] Further, I accept that your plea should attract a more pronounced amelioration of sentence pursuant to Worboyes considerations.[4]
[3] Phillips v The Queen [2012] VSCA 140, [57].
[4] Worboyes v The Queen [2021] VSCA 169, [39].
86You spent five days in hospital after the offending, because of injuries suffered arising from your removal from the vehicle. You sustained a L1 superior end plate fracture in your spine. It was also submitted that your lungs were impacted because of the OC spray. Body worn camera footage shows extensive use of OC spray that covered you and your co-offender in the white foam. I also take these matters into account in sentencing you.
87Your co-accused, Mr Tatterson, pleaded guilty in the Melbourne Magistrates’ Court on 7 March 2023 to charges including assault emergency worker on duty, theft of motor vehicle, attempted theft of motor vehicle, criminal damage and handling stolen goods. I take into account the principle of parity in sentencing you though I note, as a point of differentiation, that your co-accused faced different charges and was not sentenced on the basis of being the driver of the vehicle. He was sentenced to an aggregate term of eight months’ imprisonment. He also has a relevant prior history though it does not appear to be as extensive as yours.
Prospects of rehabilitation
88As for your prospects of rehabilitation there is obviously a need for some caution given your extensive prior history and your return to custody in the context of alleged further offending during a supervised deferral period. Overall, however I do consider that you present with reasonable prospects, given in particular the supports available.
89You are now supported by the NDIS and TAC. You speak with your NDIS coordinator, Ms Nunn, semi regularly, and you have visits with your NDIS worker, Mr Tapiwa Masenda, every couple of weeks. You also have significant support that will be available to you in terms of funding, upon release.
90You have available to you the ongoing support of your mother and sister and speak with them on a daily basis. You anticipate that on release you will return to live with your mother, however you hope to work towards your own accommodation, noting the TAC have indicated that you will have 24/7 care.
91You also speak to your son every second day. Your son is an important motivator, and the mother of your son is otherwise supportive of you as a friend.
92Dr Humphrey considers that you would likely benefit from participating in a drug and alcohol treatment program with a particular focus on relapse prevention. He considered this would be especially important given your current brain injury and increased vulnerability to further injury. Also, given your cognitive limitations, you may also benefit from a period of case management to assist you find and engage in relevant programs and activities. On release your intention is to voluntarily attend a day drug rehabilitation facility, such as the Torque program that you had referred to on your deferral period. You want to spend more time with your son, focus on sobriety and when you are in a stable position, you’d like to be a support worker for young people.
93I also do take into account in my assessment your period of compliance on the deferral period, notwithstanding the deferral was not successfully completed.
Further sentencing considerations
94The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. As already noted, general deterrence in particular is important in this case.
95The Prosecution submit that a term of imprisonment is required, structured by way of a total effective sentence and a non-parole period. Your counsel concedes that a term of imprisonment is within range and submits that it is appropriate to impose a straight term of imprisonment on all charges, taking into account your presentence detention, totality, your compliance on bail and the matters personal to you.
96In sentencing you I take into account the principles of proportionality, parsimony and totality. I have had regard to the presumption of cumulation stipulated by s.16(3D) in relation to charge 1 but do consider that substantial concurrency between charges is warranted given the overlap and close temporal connection between the charges.
97I also take into account that since being charged with this offending you have in fact spent a total of 395 days in custody, in other words, just under 13 months, but I am going to amend that because I have not accounted for the additional time In any event, you have served a far greater period in custody than what is referable. Of this period, 150 days was declared as presentence detention in the magistrate’s court for offending that pre-dated the current offending. A further 47 days has been served on the further alleged offending, not attributable to the current matters, which resulted in your return to custody.
98I have also taken into account the maximum penalties that apply and I have had regard to the general sentencing landscape for such offending, particularly in relation to the charge of aggravated offence of intentionally exposing an emergency worker to risk by driving. I consider that the only just and appropriate sentence in your case is an immediate term of imprisonment and one that is structured by a non-parole period. Your Counsel submits, on instructions, that a straight term of imprisonment is appropriate, given its unlikely you’ll be paroled as you have had only limited opportunities to engage in programs given your placement in the prison. I cannot speculate as to the prospect of you being paroled and ultimately, I sentence you on the basis that you will have to serve each day in custody. However, I consider that the mitigating factors in your case, along with the objective of promoting your rehabilitation, makes it undesirable or inappropriate to sentence you to a straight term of imprisonment.
99The sentence I am about to impose is designed to reflect the gravity of the offending and the relevant sentencing principles, along with the significant mitigatory factors advanced on your behalf. In particular, I indicate that I have reduced the sentence that I may otherwise have imposed to take into account specifically the period you spent on deferral and your special medical needs and recent experiences in custody.
Sentence
100Synthesising all relevant matters you are convicted and sentenced as follows:
101Charge 1, theft of motor vehicle, six months' imprisonment.
102Charge 2, handling stolen goods, four months' imprisonment.
103Charge 3, criminal damage, three months' imprisonment.
104Charge 4, attempted theft, four months' imprisonment.
105Charge 5, rolled-up count of intentionally exposing emergency worker, 11 months' imprisonment.
106Charge 6, damaging an emergency service vehicle, rolled-up count, seven months' imprisonment.
107Charge 21, unlicensed drive, 14 days' imprisonment.
108Charge 23, commit indictable offence on bail, 14 days' imprisonment.
109Charge 27, commit indictable offence on bail, 14 days' imprisonment on bail.
110Charge 32, contravene a conduct condition of bail, seven days' imprisonment.
111Charge 33, contravene a conduct condition of bail, seven days' imprisonment.
112I pause here. Have counsel had an opportunity to look at the maximum penalties for 34?
113MS TATAS: Yes, Your Honour. I confirm it is the 12 penalty units for first offence and 60 penalty units for a subsequent offence.
114HER HONOUR: Okay, thank you. And the driving regime as I indicate is the one that applies?
115MS TATAS: I'm just confirming, Your Honour, that's Schedule 1? Is that what Your Honour has?
116HER HONOUR: Look, I have only taken a note of it. I did go to it again last night, but I had six months and 12 months, but as – I must say we will come to the ancillary orders. It is probably likely to be a relatively moot point because there is a mandatory sentence on the other, so we will come back to that in a moment.
117MS TATAS: Yes, right, thank you, Your Honour.
118HER HONOUR: Look what I am doing in relation to Charge 34 is it – I must say I am just going to provide to counsel an indication here. It is difficult to impose a monetary penalty when somebody is serving a custodial sentence, but I consider that it is appropriate. I do not consider a conviction and discharge is appropriate. I am going to impose a fine of $300 and I take into account, obviously, Mr Jordan's circumstances and the fact that he is in custody at the moment. So I have had regard to that as a factor, but I am convicting and fining him $300. I have moderated obviously the fine substantially because of those matters.
119In terms of orders for cumulation – it the base sentence is Charge 5. I am cumulating on Charge 1, one month, and on charge 6, two months. Otherwise, the sentences imposed are to be served concurrently. That amounts to a total effective term of 14 months' imprisonment and I set a non-parole period of eight months. Now those numbers are not particularly complicated, but I always benefit from Counsel confirming that they add up.
120MS ANDERSON: I confirm that, Your Honour.
121MS TATAS: Yes, it does, Your Honour.
122HER HONOUR: I am setting a non-parole period of eight months. Okay, so that is your total sentence. Do you understand?
123OFFENDER: Yes, thank you.
124HER HONOUR: All right. I will, pursuant to s18 declare that you have served 205 days. Pursuant to s6AAA, I can indicate that had you not pleaded guilty, I would have sentenced you to some two years and five months' imprisonment with a minimum non-parole period of one year and four months' imprisonment. In terms of ancillary orders, now first of all I will just – because this matter really has had a protracted history, I just want to make sure that I have everything that I ought to. I have the disposal order first of all with items 1-11 outlined. My memory, if it is correct, Ms Anderson, is that that was not opposed.
125MS ANDERSON: That's correct, Your Honour.
126HER HONOUR: I make the disposal order in the terms sought. The forfeiture order in relation to one item, the mobile phone, again, not opposed?
127MS ANDERSON: That's correct, Your Honour.
128HER HONOUR: I make the forfeiture order in the terms sought; Now in terms of licence; The charge of aggravated reckless exposure is a serious motor vehicle offence. It requires a cancellation of any licence or permit for at least 24 months. So there is a different regime that potentially applies, but here the period is 24 months. That is s 87PSA. Section 89 is what I have just got noted here.
129HER HONOUR: On that particular charge, that is the aggravated offence of intentionally exposing an emergency worker, I will cancel any licences that you hold and disqualify you from obtaining a licence for a period of 24 months. Can I indicate I am not exceeding that minimum term simply because you have had these fragmented periods on remand and the delay involved. Had it not been for this and had this matter been finalised closer to the commission date, I can indicate that given the nature of this offending, I would have exceeded that minimum term. But because of those matters, I am not proposing to.
130Mr Jordan, you need to understand very clearly that you cannot drive a motor vehicle for that period of time whilst you are disqualified. Do you understand.
131OFFENDER: Yes, I do.
132HER HONOUR: On Charge 1 as I understand it, theft of motor vehicle, I am required to interfere with Mr Jordan’s licence though there is no mandatory minimum term set, but on conviction it is a requirement. I must say it is appropriate in any event. I am going to cancel any licence and disqualify Mr Jordan for a period of six months on Charge 1 and on summary offence charge 34, the subsequent regime applies. Can I indicate that even if it did not apply, I consider that a disqualification period of 12 months is appropriate and that is the period of time that I will disqualify Mr Jordan for. At the end of the day, Mr Jordan, these periods are separate punishments, but they do commence as of today. They commence as of today, the date of the order, and they do operate concurrently. So the sum total is 24 months from today. Understood?
133OFFENDER: Thank you.
134HER HONOUR: Counsel, is there anything further because Ms Anderson I can give you a moment with Mr Jordan if you would like on the link.
135MS ANDERSON: Nothing further from my end, Your Honour.
136MS TATAS: Nothing further, thank you, Your Honour.
137HER HONOUR: All right. Counsel, thank you very much for your assistance. Mr Jordan, just stay where you are. You will have a moment to speak to your counsel, okay?
138OFFENDER: No worries, thank you.
139HER HONOUR: All right, thank you.
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