Director of Public Prosecutions v King

[2020] VCC 1327

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00685

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKIE KING

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2020 and 12 August 2020
DATE OF SENTENCE:	24 August 2020
CASE MAY BE CITED AS:	DPP v King
MEDIUM NEUTRAL CITATION:	[2020] VCC 1327

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Malik	Office of Public Prosecutions
For the Accused	Mr S. Thomas	Balmer & Associates

HER HONOUR:

1Rickie King, you have pleaded guilty before me to two charges of theft, one charge of aggravated offence of recklessly exposing an emergency worker to risk by driving, one charge of conduct endangering life, one charge of criminal damage, one charge of handling stolen goods, two charges of possession of a drug of dependence, and have also pleaded to the following summary charges, which were uplifted, pursuant to 145 of the Criminal Procedure Act. 

2They are a charge of failing to stop a vehicle after an accident, driving whilst disqualified, fraudulently using false registration plates, possessing a controlled weapon without excuse and committing an indictable offence whilst on bail. 

3The facts underlying your offending are as follows.  Overnight, between 12 and 13 December 2018, a white Toyota HiAce van was stolen from where it had been parked by its owner on Nicholson Street, South Yarra.  At about 3.38 pm on 11 January 2019, you were driving that car along Springvale Road, Mulgrave.  Your actions in driving this stolen vehicle underly Charge 1 on the indictment, motor vehicle theft.  The HiAce was displaying false numberplates, that relates to the summary charge of fraudulently using false registration plates.

4While you drove the car passed the intersection with Dunlop Road, you were waving a silver coloured semi-automatic imitation firearm outside your open driver's window.  You pointed this weapon towards another motorist, Mark Coverdale.  Those actions underly Charge 2 on the indictment, prohibited person possessing an imitation firearm. 

5At the time, Mr Coverdale was speaking on a handsfree phone to a friend, who he asked to call police and then continued to follow you.  He saw you driving erratically south on Springvale Road, moving from the extreme left to the extreme right lane of the three lane carriage way. 

6You were then held up in traffic while travelling through the Springvale central business district.  You continued driving erratically and at high speeds, weaving through traffic and changing lanes, before coming to a stop facing south in the bus lane on Springvale Road at the intersection of Governor Road in Keysborough.  Your actions in driving this way underly Charge 4 on the indictment, conduct endangering life. 

7At approximately 4 pm, Mr Coverdale drove past you and saw you slumped over the steering wheel.  He then stopped his car and contacted police, who then attended at about 4.01 pm.  They parked directly behind you with the red and blue lights activated. 

8Leading Senior Constable Jim Cole Surgeon and Constable Brittany Alcauk and Sergeant Tracy McGorry approached the car.  The engine was still running and was facing a green traffic control signal.  Police saw you were slumped over the steering wheel and appeared to be asleep.  The semi-automatic imitation handgun was seen lying on your lap.  Further police were then alerted.

9First Constable Sam Platt placed a tyre deflation device or Stop Sticks around the front left driver's tyre of your car, whilst a second police officer, Constable Leah Carpenter drive another police vehicle, which was a four-wheel drive hard up against the front of the car, of the HiAce you were driving, so that it was completely blocked. 

10First Constable Platt opened the driver's door of the HiAce, whilst another police member removed the handgun from your lap.  She attempted to turn off the car engine but saw there was key, as the ignition barrel had been damaged.  Sergeant McGorry then opened the front passenger door as you woke up.  She told you several times not to move, but you ignored her instructions and continued to engage in the manual gears of the HiAce.  At this time, OC foam was used to prevent you from driving away. 

11You then commenced to spin the wheels of the HiAce and drove backwards and forwards several time, smashing into and pushing both police cars away so that you could move the HiAce out of the position it was in.  You drove over the tyre deflation device, which caused a puncture to the front left tyre of the HiAce, then drove off at a fast rate of speed over Grover Road south and along Springvale Road. 

12Luckily, because of evasive action taken by police, no members were hurt.  Your actions in driving in this way, however, underly Charge 3 on the indictment, an aggravated offence of recklessly exposing an emergency worker to risk by driving. 

13Another motorist, Brooke Hayes, was driving her black Hyundai along Springvale Road, near the intersection of The Waterways Boulevard, which is about 400 metres from where police had attempted to arrest you.  As you drove past Ms Hayes at a high rate of speed, you swiped her car on the rear right driver's side.  These actions underly Charge 5 on the indictment, criminal damage.  You failed to stop at the scene of this collision, and this relates to the summary offence of failing to stop a vehicle after an accident.

14You then drove past the intersection of Wells Road into Edithvale Road in Chelsea Heights, took a left hand turn into Egret Drive and parked the HiAce in the rear car park of the Long Beach Medical Centre.  You got out of the car and walked to a nearby Subway store and took a drink bottle from the drinks fridge, leaving without making attempt to pay.  Those actions underly Charge 6 on the indictment, theft.

15You then began to walk back to the HiAce.  At about 4.20 pm, you were arrested without further incident and you were searched, at which time police located the following items.  Firstly, a small silver foil containing .3 grams of heroin found in your jeans pocket, underlying Charge 8 on the indictment, possess of drug of dependence. 

16Secondly, there was a small clear Ziploc bag containing ice, .01 of a gram, in a wallet in another of your jeans pockets, which underlies Charge 9 on the indictment, possessing a drug of dependence.  Also found in the wallet were various stolen identity documents in the name of several people, and possession of these items underly Charge 7 on the indictment, handling stolen goods. 

17Following a search of the HiAce, police located the following items.  A brown canvas bag, underneath which was a 30 centimetre long kitchen knife.  And inside the bag was a foldout knife.  This relates to the summary charge of possessing a controlled weapon without excuse.  Inside the driver's door were three bank cards in the name of another person, and this also underlies Charge 7 on the indictment, handling stolen goods.

18You were taken to the Dandenong police station, where you were interviewed; you stating that you did not remember anything about the day, as you had been suing drugs, that you had taken GHB about 45 minutes before you drove, that you had been in possession of the HiAce for two days, and you suspected that it was stolen.

19On 30 August 2018, you were disqualified from obtaining a driver's licence or permit for 12 months, and your driving on this occasion relates to summary offence of driving whilst disqualified.  At the time of offending, you were on bail for charges of theft of motor vehicle and handling stolen goods, and so your actions in offending on this days underly the summary charge of committing an indictable offence whilst on bail.

20The maximum penalty for theft is 10 years' imprisonment, the maximum penalty of being a prohibited person in possession of an imitation firearm is 10 year's imprisonment or 1200 penalty units.  The maximum penalty for aggravated reckless exposure of emergency workers to risk is 10 years' imprisonment.  The maximum penalty for conduct endangering life is 10 years' imprisonment.  The maximum penalty for criminal damage is 10 years' imprisonment.  The maximum penalty for handling stolen goods is 15 years' imprisonment.  The maximum penalty for possessing a drug of dependence for personal use one year imprisonment.  You were remanded in custody. 

21This matter was resolved at a committal case conference hearing on
8 April 2019, and it is conceded by the prosecution this is a very early plea of guilty. 

22Pursuant to s.31 of Sentencing Act and s.5(2H) of that act, the court must sentence a person who has committed the offence of aggravated reckless exposure of an emergency worker to risk to imprisonment unless a special reason applies; no such reason was ventilated on your behalf. 

23I now turn to your personal circumstances.  I apologise, how old is your client again, please, Mr Thomas?

24MR THOMAS:  He is 24 years old, Your Honour.

25HER HONOUR:  You are now 24 years of age; you were 23 at the time of this offending.  Your parents separated when you were four, and after a dispute with your mother's new partner, you left home at age 12.  Your father was gaoled when you were five and you had no further contact with him until you were 16. 

26You and your older brother were placed in foster care with a legal guardian until you were 17.  You left school halfway through Year 9 and started smoke ice daily at the age of 16.  When you were 17, you moved in to live with your father, where you paid rent whilst he was gaoled for further offending.  During that time, you sold drugs in order to pay your rent, which led to an escalation in yes our contact with the criminal justice system.  You first tried heroin at the age of 19 with your father and quickly became addicted, so that this too became a daily habit up to the time of your arrest on these matters.

27Between the age of 16 and 19, you worked as an unskilled labourer, paving and landscaping.  You became involved with your partner, Rebecca Walsh, when you were 21.  She is six years older than you and has two children from a previous relationship.  Your first child was born to Ms Walsh on 29 May 2019.

28When you appeared before me on these charges originally, on 26 July 2019, you had at that stage spent 196 days in custody.  During that time, you had performed very credibly.  You had undertaken a large number of courses, including a drug and alcohol course.  You had also obtained placement at Odyssey House.  In those circumstances, I deferred sentencing in this matter for 12 months to give you an opportunity to attend to your drug problem, which I am satisfied has underlain most of your offending, previous offending, to which I now refer. 

29You have an extensive prior criminal history, beginning in 2010, when a Children's Court placed you on a good behaviour bond for charges of resisting and hindering police.  Then in 2013, you were again dealt with by way of a Children's Court, who placed you on a good behaviour bond for possession and use of cannabis. 

30In October 2014, you were dealt with for dealing with property suspected of being the proceeds of crime, driving offences, intentionally damaging property, attempted theft from a motor vehicle, failing to answer bail, theft and possession a controlled weapon without excuse.  On that occasion, you were also released on a good behaviour bond. 

31In May 2016, you were dealt with for the first time by a Magistrates' Court on a large number of charges, including reckless conduct endangering serious injury, various driving offences, a number of charges of contravening a family violence intervention order, two charges of persistent contravention of a family violence intervention order, driving whilst your authorisation was suspended, failing to answer bail, obtaining property by deception, intentionally damaging property, traffic in methylamphetamine, traffic in cannabis, possession of a drug of dependence, again dealing with proceeds suspected of being the proceeds of crime, handling stolen goods and possessing a prohibited weapon without exemption.  On that occasion, you were placed on a community corrections order for a period of 12 months. 

32In July 2017, you were dealt with for contravening your community corrections order and also for the breaching charges, which included theft, shoplift, unlicensed driving, using an unregistered motor vehicle, committing an indictable offence on bail, theft from a motor vehicle, driving whilst disqualified, wilful damage, unlawful assault, dangerous driving while pursued by police and failing an oral fluid test, and without authorisation entering a private place.  On that occasion, you were sentenced to 45 days - sorry, an aggregate term of 131 days in custody, and then released on another community based order for a period of 12 months. 

33On 15 June 2018, you were sentenced to an aggregate term of six months' imprisonment on charges of failing to give information as to being a driver, driving whilst disqualified, theft, theft from a shop, unlicensed driving, obtaining financial advantage by deception, theft of a motor vehicle, driving whilst authorisation suspended, burglary, handling stolen goods, dangerous driving whilst pursued by police, exceeding the speed limit by 45 kph and other minor driving offences, but including careless driving and again failing an oral fluid test within three hours of driving.  Also in June, on that date, you were dealt with for a contravention of the community corrections order. 

34Finally, on 30 August 2018, you were dealt with by the Moorabbin Magistrates' Court for driving whilst disqualified, theft from a shop, committing an indictable offence on bail and contravening a conduct condition of bail, for which you were sentenced to an aggregate term of 45 days' imprisonment.

35Now, I have gone into some detail into your prior criminal history simply because it reflects criminal behaviour, which was simply virtually repeated by the offending for which this court must deal with you. 

36As I said, I adjourned this matter for 12 months in order to give you an opportunity to take advantage of the placement at Odyssey House.  You returned to court before me on 12 August this year, at which time, unfortunately, you were back in custody. 

37You were bailed to Odyssey House a week after 26 July 2020 and remained there for only 42 days.  Firstly, you broke a strict rule about one to one fraternisation with female residents at Odyssey House where, because you formed a friendship with such a person, although I was assured there was no romance between you. 

38Secondly, you failed to disclose the name of a fellow resident suspected of bringing in illegal buprenorphine into Odyssey House.  This person as not a friend of yours, but you refused to give up his name.  You were then exited from Odyssey House.  You applied to be readmitted, but your application was rejected. 

39You then went to live with your older brother at his insistence in order live with him and to work with him.  You did well for some time.  You were arrested on 28 October 2019 on Bench warrants for failing to appear at the Melbourne Magistrates' Court on 2 October; this was contravening a condition of bail by not residing at Odyssey House.  Your counsel told me you were simply too scared to turn up.

40On 28 October, you were also dealt with for offending which predated the offending before this court, which also breached the previous community corrections order.  You were essentially gaoled to time you had already served and placed a fresh community corrections order.  You engaged well on this order and returned to work with your brother for the next few months.  However, you then relapsed into drug use, and by mid-February, your brother would no longer accept you in his home and you were told to move out. 

41You then moved in with an old friend and did excavation work for about two days a week.  You continued to comply with your CCO, and Corrections Officer Denise Halstead was plead with your progress.  However, you continued to use drugs, but were open with her about this. 

42Sadly, on 3 July 2020, you were remanded in custody on serious charges, including armed robbery, unlawful assault, being a prohibited person in possession of a firearm, possessing a prohibited weapon and possession of cannabis.  The matter is still to be dealt with in the committal stream of the Magistrates' Court, and your counsel told me that you made partial admissions to police in your record of interview. 

43The allegations are that you attended on a man who owed you a debt over a burnt car, requesting that he handover to you a registered motorbike that he owned as payment for the debt.  When this person refused to do this, you allegedly produced a handgun from your car and pointed it at him.  A second victim allegedly, as a result of this, transferred $2000 to your bank account. 

44A police search of your premises revealed a flick knife and other items.  No hand-up brief has yet been served, and you have remained in custody ever since. 

45It is agreed between the parties that you have about 14 days of what is called Renzella time, or 'dead time', that being time served by you in relation to other offending which did not actually translate into a gaol sentence.  It was further submitted by your counsel that I should take into account the 44 days you spent at Odyssey House as a notional period of voluntary deprivation of liberty.

46I do take this time into account in sentencing you.  But in all, in my view, this period of 48 days is ultimately of little weight in the overall sentence that I now must impose.  It is clear that I must deal with you now by way of a term of imprisonment to be immediately served. 

47I do accept that you made a credible attempt to capitalise on the opportunity give to you to attend at Odyssey House.  It is to your credit that although you failed to abide by the strict regulations then, you were not rejected for drug use.  You then did spend some months drug free and living with your brother and working. 

48I accept that despite relapsing into drug use, you kept working off your own bat after your brother understandably refused to have you at his home any longer.  I also accept that you engaged well with Ms Halstead, who is an experienced and respected Corrections officer, well known to this court. 

49But at the end of the day, you did relapse and got yourself involved in a situation where you now face extremely serious indictable charges, allegedly involving a firearm. 

50This matter has yet to be resolved, but its relevance does lie in my assessment of your prospects of rehabilitation.  You clearly can do well in gaol, as you proved in your time on remand leading up to the plea hearing on 26 July 2019.

51Between 15 January and 26 July 2019, you obtained 12 certificates in various fields, such as workplace safety, food preparation, traffic management, and you completed education service programs in language, literacy, numeracy and vocational assessment, and a six hour alcohol and drugs and loss program. 

52The problem is in how you - whether you can transfer this to your life in the community.  I accept that you have some prospects of rehabilitation, but you still have to fully commit to a drug free lifestyle; until you do, nothing is going to change.  And I can only regard your prospects of rehabilitation as guarded. 

53The original offending was inherently dangerous, and you were driving in a completely drug affected state, such that you posed a serious risk to other road users.  You have done this time and time again, unfortunately, Mr King, as your priors show.  Your actions in relation to police were equally dangerous. 

54As I have said, you have a long criminal history involving numerous appearances for drug related and driving offending.  I also take into account your difficult childhood, the neglect and your actual introduction to heroin use by your father.  I note that the prior for trafficking in drugs was, as I have said, a way of you paying rent for the premises you were living in whilst your father was in gaol.

55You do have supports in the community, such as your brother, even though you may have estranged from him at the current time.  Importantly, I do accept that you do want to rehabilitate and to reform.  You are a young offender, for the purposes of sentencing, and it is important that those ambitions to reform and to remain drug free and to live a responsible working life in the community are encouraged. 

56Overall, I also need to take into account the difficult conditions that currently exist in gaol due to the COVID pandemic.  That is, that you are unable to participate in programs, you are confined to your cell, you are not able to exercise; the deprivation of those supports within gaol are, in my view, particularly important for a young offender such as yourself.

57Having taken into account all these matters, I have decided to sentence you also to a straight term of imprisonment.  I am doing this because of the fact that you are being held in custody also in relation to a matter which is going into the indictable stream.  There are serious delays because of the COVID pandemic in relation the hearing of these matters. 

58A court is not entitled to take into account a potential decision of the parole board, where a term of imprisonment imposed which involves a maximum/minimum term.  My decision to sentence you to a straight term of imprisonment is also based on the fact that it is most unlikely, for reasons totally unrelated to any decision of the parole board, that you would serve a term - you would be released into the community on parole.  That is simply because of the almost certain extensive delays that you face in relation to the charges for which you are arrested this year.

59I have therefore decided, in the circumstances, that given the almost certain likelihood that you would never be released on parole because of your further offending, that I should deal with you by a straight term of imprisonment. 

60I am also satisfied that the offences that you face all arise in relation to the one incident, and I therefore propose dealing with you by way of an aggregate sentence, and that will be a sentence of 10 months' imprisonment.  What is the PSD, please, Mr Malik?

61MR MALIK:  Your Honour, it is 206 days.

62HER HONOUR:  I declare that 206 days of this sentence have already been served by way of pre-sentence detention.  So, Mr King, that is your situation.  I know that you did try as best you could when I imposed the deferred sentencing period.  I hope I have made it clear in my sentencing remarks that I recognise that you do want to get off drugs and you do want to lead a life which does not involve drug use, and which does not involve criminal offending. 

63But in the circumstances, because of the way this proceeded, because you actually could not get yourself off drugs, because you offended in almost exactly the same way that you have time and time before, I have been left with no choice but to sentence you in that way; do you understand that?

64OFFENDER:  Yes, Your Honour.

65HIS HONOUR:  All right.  And it seems to me that, you know, given the circumstances of your upbringing and the way that you did manage to make a bit of an effort on the deferred period, that you have got the capacity to do this in the future, and I hope you can manage that, all right?

66Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of two years' imprisonment, and order that you serve a minimum term of 15 months.  Yes, thank you.  Now, I know that there are order that I need to sign, and I will get them to you, Mr Malik.

67MR MALIK:  Thank you, Your Honour.  There is also the issue of the licence disqualification.

68HER HONOUR:  Yes.  You are disqualified, all licences or permits are cancelled, you are disqualified from obtaining any further licence for a period of 14 months.

69OFFENDER:  Yes, Your Honour.

70HER HONOUR:  Thank you very much.

71COUNSEL:  As Your Honour please.

72HER HONOUR:  Yes, thank you.

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