Director of Public Prosecutions v Kovac
[2020] VCC 1424
•8 September 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00751
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL KOVAC |
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JUDGE: | HER HONOUR JUDGE CANNON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 August 2020 |
DATE OF SENTENCE: | 8 September 2020 |
CASE MAY BE CITED AS: | DPP v KOVAC |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1424 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Intentionally exposing emergency worker to risk by driving – Dangerous driving while pursued by police – Summary offences of resist police officer, commit indictable offence whilst on bail, unlicensed driving and drive vehicle whilst exceeding prescribed concentration of drug – Relevant criminal history – History of drug abuse – Dysfunctional family background
Sentence:Convicted and sentenced to Total Effective Sentence of 5 years and 9 months’ imprisonment with a non-parole period of 3 years’ and 10 months’ imprisonment – Pre-sentence detention of 211 days declared as having already been served – s.6AAA Sentencing Act 1991 declaration – Licence cancellation of 24 months duration
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Livingstone-Clark | Solicitor for Public Prosecutions |
For the Accused | Ms E. Clark | James Dowsley & Associates |
HER HONOUR:
1Michael Kovac, you have pleaded guilty to an indictment containing one charge each of intentionally exposing an emergency worker to risk by driving
(Charge 1) and dangerous driving while pursued by police (Charge 2).2Charge 1 is a rolled-up charge, encompassing your conduct in respect of two police officers.
3The maximum penalty in respect of it, that is, the first mentioned offence, is
20 years' imprisonment, and the second mentioned offence is three years' imprisonment.4Further, you have pleaded guilty to the following summary offences which were uplifted to this court:
a.Charge 8: Resist Police Officer - this is a rolled-up charge incorporating your actions in resisting three police officers during your arrest. The maximum penalty is 60 penalty units or imprisonment for six months.
b.Charge 11: Commit Indictable Offence whilst on Bail - the maximum penalty is 30 penalty units or imprisonment for three months.
c.Charge 12: Unlicensed Driving - the maximum penalty is
60 penalty units or imprisonment for six months.d.Charge 13: Drive Vehicle whilst Exceeding Prescribed Concentration of Drug - the maximum penalty in the case of a first offence is a fine of not more than 12 penalty units.
5In sentencing you I must take into account the maximum penalties as these reflect the seriousness with which Parliament regards the offence in question.
6You were 37 years old when you committed the offences now before me. You are now 38.
7On 28 January 2020, you were charged and bailed by Victoria Police on charges of theft and possession of a drug of a dependence (namely methylamphetamine). You were required to appear on 16 April 2020 at the Ballarat Magistrates' Court. The offending before me occurred during the period of your bail undertaking, giving rise to Summary Charge 11: Commit Indictable Offence on Bail.
8On Monday, 10 February 2020, at about 10pm, you, a Ruby Stark and a Joshua McIntosh were driving in the Black Hill area of Ballarat.1 You were driving a 2002 Holden Commodore Sedan owned by Joshua McIntosh.2 Mr McIntosh was not licensed to drive a motor vehicle at the time, but he believed that you held a Queensland driver licence.3
9You told Mr McIntosh to 'Get out of the car, I have [a] feeling things are about to get hectic'.4 Mr McIntosh left the vehicle at the intersection of Walker and Moola Streets in Black Hill. You then drove off with Ms Stark, who was in the passenger seat.
10At 10.34 pm on that same night, Leading Senior Constable Benjamin Hay
(LSC Hay) and Senior Constable Grant Egan (SC Egan) were performing traffic duties in the Ballarat area. They were driving a marked Highway Patrol vehicle. LSC Hay observed the car you were driving parked on Learmonth Road in Wendouree. The vehicle flagged on the automatic number plate recognition system as being registered to an unlicensed driver.5 Mr Hay drove past your car twice while it was stationary. Mr Egan observed that the vehicle was running, the headlights were on, and the driver's side door was open.611As police came up behind your car, you began to drive away. Mr Hay followed the vehicle and activated the emergency lights and sirens, giving you a clear direction to stop.7
12However, you did not stop, and you accelerated away from police. You began driving erratically, swerving from side to side.8 Mr Hay and Mr Egan continued to follow the vehicle with lights and sirens activated. They observed you drive the car at a fast rate of speed and make deliberate attempts to avoid being intercepted.9
13Mr Egan relayed details of the vehicle and the manner of driving to police communications. Mr Hay and Mr Egan were commanded to cease pursuit of the vehicle and allow the Police Airwing and other vehicles to monitor its movements.10
14Mr Hay pulled over onto the gravel road shoulder on the left-hand side of Learmonth Road. He then deactivated the emergency lights and sirens of his vehicle. Mr Hay observed you to be driving at 110 km/h in an 80 km/h zone and crossing over on to the incorrect side of the road.11
15You then drove around the roundabout at the intersection of Airport Drive and Learmonth Road and began travelling back towards the police vehicle.12 The Stalker Dual DSP speed detector fitted to the police vehicle registered your speed as 98 km/h in an 80 km/h zone. You were driving at this speed head on towards the stationary police vehicle.13 As you approached police, you deliberately swerved in the direction of the police car. This caused Mr Hay to take emergency evasive action to avoid a head on collision with you.14 Both police officers were in fear that if your car had collided with them at the speed you were travelling, they would have been killed or have suffered serious injuries. This conduct gives rise to Charge 1: Intentionally Exposing an emergency worker to risk by driving.
16The Police Airwing continued to monitor you as you drove through Wendouree towards central Ballarat. Various police units mobilised to the area in an attempt to intercept you.
17The following conduct constitutes Charge 2: Dangerous Driving while pursued by police:
a.Police attempted to intercept your car at the intersection of Forrest Street and Howitt Street in Wendouree.15 Detective Sergeant Paul Allen
(DSgt Allen) and Senior Constable Ebonie Lee (SC Lee) approached the vehicle on foot. As they approached, you drove away at a fast rate of speed.16b.You continued to be monitored by the Police Airwing who observed you to drive erratically through Ballarat.17
c.Detective Senior Sergeant Timothy Argall (DSSgt Argall) took up a stationary position on Scott Parade between Davies and Peel Street. He positioned a Vehicle Immobilising Device (VID) on the southbound footpath. Mr Argall observed you driving towards his location at a fast rate of speed, with the engine revving and accelerating hard. Mr Argall positioned the VID on Scott Parade in the path of your vehicle. He observed the front and rear passenger side tyres of your car impact the VID and deflate. You continued to drive down Scott Parade with deflated tyres before turning on to Humffray Street North.18
d.A short time later, you lost control of the vehicle, 'Spinning out'19 and your car came to rest on the nature strip in Stawell Street.20 You and
Ms Stark ran from the damaged vehicle.21
18A short time later, police found you in the back yard of the Ballarat Bowling Club. You refused police direction to lie on the ground and were taken to the ground by a police officer. You continued to refuse police direction to place your hands behind your back and took hold of a pipe which was fixed to the ground. You were eventually subdued and handcuffed, then placed under arrest.22 This gives rise to Charge 8: Resist Police.
19At 4.05 am on 11 February 2020, a sample of blood was taken from you for toxicological analysis, which revealed that your blood contained approximately 1.2 milligrams per litre of methylamphetamine, giving rise to Charge 13:
Drive motor vehicle while exceeding the prescribed concentration of a drug.20At the time of offending, you were not licensed to drive a motor vehicle, giving rise to Charge 12: Unlicensed Driving.
ARREST & INTERVIEW
21Upon your arrest, you told police that you had consumed 'Two points and two grams of Ice' (methylamphetamine). You were taken to the Ballarat Base Hospital for assessment before being lodged in police custody.23
22You were not interviewed due to police observations that you were substance affected.24
23Mr Kovac, your offending is most serious and is deserving of a punishment which is just in all of the circumstances. Your conduct must be firmly denounced. Your conduct on the day in question from start to finish was outrageous, especially your driving straight at police officers who were doing no more than their job; in fact, they were no longer pursuing you at the time that you drove your car, at speed, directly at them. Despite the fact that they posed no threat to you, you turned back and targeted them in their car. Thankfully, police were able to avoid being hit by your car as it careered toward their vehicle. The fact that there was not a tragedy as a result of your actions was no thanks to you. Having exposed the two victims to such a high degree of danger that might well have cost them their lives or caused them serious injury, you embarked on a further episode of driving that was most dangerous. You only stopped when police, most skilfully disabled your car. Even then, you behaved poorly, resulting in you facing the further charge of resist police.
24It is not a mitigatory factor that you were badly affected by methamphetamine at the time of the offending, to the point, according to Ms Ferrari, psychologist, that you were suffering from drug induced psychosis; whilst this might help explain your bizarre and dangerous behaviour, it is no excuse and does not take away from your moral culpability, which I find is high.
25I understand that you were feeling a good deal paranoid at the relevant time and that you may well have been suffering from a drug induced psychosis, however, I was told that part of your thinking at that time involved getting away from the police, so there was some logic to some of your actions. Also, your remark to Mr McIntosh shortly before you engaged in the offending indicated that, notwithstanding your compromised state of mind at the time, you knew that you were about to involve yourself in a situation which, according to you, would be 'Hectic'.
26It is most concerning that you had been on bail for less than two weeks in relation to other charges including possession of methamphetamine when you committed the offences now before me. There is a separate offence of committing an offence whilst on bail and I have been careful not to doubly punish you in relation to this aspect of your offending.
27There were no victim impact statements tendered in this matter but it takes no imagination to know that your conduct toward the two police officers that you drove at, would have caused a great deal of fear in them, and it is to be hoped that they have been able to cope with any ongoing effects that this ordeal might have caused them.
28In sentencing you, I must attach strong weight to general deterrence in a bid to deter others from behaving as you have. As I said at the plea hearing, police must be sick and tired of being the target of dangerous conduct of the kind that you exposed them to. A strong message must be sent to those tempted to offend as you have that such conduct will not be tolerated.
29I have also factored in that Charge 1 and summary Charge 8 are rolled-up charges which means that in sentencing you, I am able to sentence you in respect of the conduct that the relevant behaviour entails, although, I accept that in respect of Charge 1, there was one episode of driving albeit that there were two separate victims who were involved, and in respect of Charge 8, there was the one incident of resisting arrest, albeit that three police officers were involved.
30I take into account your criminal history, which, leading up to 2013 comprised a number of summary offences in other states, mainly driving matters, including unlicensed driving. You were also dealt with for two charges of common assault and larceny at one stage. These were all dealt with by way of a fine or a good behaviour bond. Then, in Victoria in 2012 you were convicted in the Magistrates' Court of attempted burglary and sentenced to two months' gaol which was wholly suspended.
31On 26 March 2013, you were sentenced by His Honour Judge Maidment, as he then was, in this court to seven years' imprisonment with a non-parole period of four years and two months' imprisonment (346 days' pre-sentence detention declared) for recklessly causing serious injury, robbery, burglary and other offences arising from a series of burglaries committed with your father. The most serious of these matters concerned dreadful offending against an elderly woman who you and your father confronted in her own home.
32As is evident from Judge Maidment's sentencing reasons, and as submitted by your counsel before me, it was your father who inflicted the serious injury on this victim, in circumstances where you were not expecting anyone to be home. As your counsel said, you pleaded guilty on a complicity basis to the head charge, which attracted a four year term on its own.
33I was told that you were denied parole in 2018 as you did not have an address to live at and ultimately, you served the entire seven year head sentence imposed in 2013. This was your first experience of incarceration, and it was a particularly harsh experience as you were a protected prisoner for the entire period due to the nature of your offending, and also you did not have the advantage of parole.
34I was told that after you were released from custody in April 2019, you had some support from Relink, a service which helps offenders where they are not supported through parole or a community corrections order.
35However, you found it hard to obtain employment, although you were able to secure some casual work, and you experienced a good deal of anxiety as you had been in gaol for so long and found it hard to cope in the community. Your counsel told me that your difficulty in obtaining employment was partly due to your name being publicised at the time of your offending with your father, although this was not clearly the reason, in my view.
36At the time of the offending, you were living in a rooming house in Ballarat.
37You had been developing a rapport with one of your children who was in the care of your mother; however, your mother, who was estranged from you, was unaware of this contact, and your daughter felt guilty about this. In the end, she chose to stay with her grandmother rather than to continue contact with you.
38The breakdown of this relationship had a significant impact on you which led you to turn to methamphetamine, which you were using heavily at the time of the offences for which I now sentence you. You were extremely paranoid and entertained some beliefs; in the calm light of day, you have been unable to sort fact from fiction about these.
39I allow for a significant discount in the sentence that you would otherwise receive, as you have pleaded guilty at the earliest opportunity. In doing so, you saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings. I also accept that you are remorseful for your conduct, which is reflected in your preparedness to plead guilty at such an early stage, and in your expressions of remorse to Ms Ferrari, psychologist, and in a letter to the court. Although such letters as I received form you can often be seen as self-serving, in your case, in all of the relevant circumstances, including the fact that you appeared to be grossly affected by drugs when you offended, and that you are now
clear-headed, I am prepared to accept that you are truly sorry for what you did, and have some insight into the seriousness of your offending.
40However, I put you on notice, Mr Kovac, that there appears to be a strong link between your drug use and offending, which you now appear to appreciate, such that if you choose to take drugs in the future and then commit offences whilst under their influence, then your choice to take drugs may well be treated as an aggravating feature of any future offending. I do hope that you understand this.
41I also take into account the report of Ms Ferrari, psychologist, dated 5 August this year in respect of your mental health. Your counsel relied to the following aspects of that report and I must say I have omitted reference to her assessment of your risk of re-offending as I regard this as my task. In any event, Ms Ferrari was of the view that:
a.You have a history of generalized anxiety and major depressive disorders dating back to your adolescence and are vulnerable to substance use relapse at times of stress [101].
b.There is evidence of an undiagnosed attention deficit hyperactivity disorder from childhood, which would have increased the risk of
self-medication with substances [102].c.You displayed evidence of a substance induced psychosis at least two months prior to the offending with worsening symptoms that persisted during and post offending [103].
d.That you might meet the criteria for schizophrenia, however, there is no evidence of negative symptoms and further assessment in the future was required in respect of this [103].
e.At the time of the offending, you believed you were in imminent danger on account of your substance induced psychotic symptoms [105].
f.You do not appear to have a criminal belief system and your offending was more reflective of your psychotic symptoms and psychological distress [107].
g.Your mental health issues may (emphasis mine) be exacerbated by a period of imprisonment due to the volatility of the prison environment and your previous experience of being assaulted during your first incarceration. This increased your anxiety and sense of mistrust towards others, which exacerbated your current psychotic symptoms [116].
42Your counsel submitted that limbs 5 and 6 of Verdins applied in view of matters raised by Ms Ferrari as to your experience of gaol; however, the learned prosecutor submitted that limb 6 did not apply, in view of the fact that it had not been shown that incarceration would have a substantial effect on your mental health. Your counsel submitted that even if I did not accept the application of limb 6, that I ought take into account the report of Ms Ferrari in a general way, insofar as this aspect was concerned, as well as the other matters in her report.
43In my view, the limb 6 has not been established, but I accept that time in gaol will be and has been harder for you because of your underlying mental health difficulties. Further, time in gaol has been and will be harder for you due to the fact that you will be spending your days in protection and also due to the COVID-19 restrictions. In this regard, I was told that if not for these, you would receive visits from your friend, Ms Stark who was the passenger in the car when you committed these offences. You will also be denied access to various programs which would otherwise be available and may be subject to lockdowns from time to time. I further factor in that, having been in gaol for an extended period and now having returned there, there is a risk that you may become institutionalised, which Ms Ferrari believed had occurred when you were last in gaol. She said that upon your release last time, you experienced symptoms of anxiety as you found it hard to cope in the community.
44I have also taken into account that you have had some physical health issues relating to your retina and hip, but it was not put that these would cause you an added burden in gaol.
BACKGROUND
45I take into account your background, which was set out in your counsel's written submissions and to which she referred in the course of the plea hearing.
46You are estranged from most members of your family. You did have some contact with your brother at one stage but when you fell into drug use, your relationship with him broke down.
47You struggled at school, because you had behavioural issues, and you left in Year 8 or 9, as your mother expected you to work rather than to persevere with your education. Despite struggling with drug and alcohol abuse for many years, you have worked in various industries in the past from time to time, including in retail, tree lopping, concreting, and labouring. You worked in a laundry on a casual basis before you were remanded into custody.
48When you were 27 years old, you decided to reconnect with your father and moved to Victoria. This was a disaster, as your father led you down a path of offending which ultimately saw you serve seven years in gaol. Having said this, you were obviously old enough to know better and no doubt your own substance abuse problems contributed also to your offending at that time. You ceased having any contact with your father after you were arrested for the 2013 offences to which I have previously referred.
49I understand that you have three children to three different mothers. You have had limited contact with two of your children in the past, but you no longer have any contact. You have spoken to your third child over the phone in the past, but he was removed from his mother's care, and you have had no contact with him for some time. I was told that your lack of contact with your children is a source of some distress for you. If you want to be a positive presence in their lives, Mr Kovac, as opposed to your own father in your life, it is to be hoped that you turn your life around dramatically.
50I understand that you are now drug-free, but the challenge for you will be when you return to the community in an unstructured environment. I express the very strong wish that all things being equal, you are released on parole in respect of the sentence that I impose, so that you have a chance to rebuild your life with appropriate support.
51In view of your battles with drugs, your criminal history, which is a rather uneven one, and the nature of your offending before me, but also factoring in your work history, remorse, and level of insight, I assess your prospects of rehabilitation as guardedly fair. I must place fairly solid weight on specific deterrence and protection of the community.
52In relation to the sentence that I impose in respect of Charge 1 on the indictment and in respect of summary Charge 11, there is a presumption that these sentences be served cumulatively in respect of any other sentences that I impose in this case. However, it is accepted by the prosecution that this does not mean that the principle of totality does not apply, and it does not mean that there is a presumption of complete cumulation. It is appropriate to impose a level of cumulation in this case, in any event, to reflect the separate offences that you committed on the day in question. However, I have also applied the principle of totality and have had regard to the fact that this was one episode of offending, albeit a most serious one.
53You are convicted of each of the offences both on the indictment and the summary matters.
ANCILLARY ORDERS
54By reason of your conviction in respect of Charge 1, all licences and driving permits are cancelled and you are disqualified from driving for a period of
24 months.55You are sentenced to the following periods of imprisonment:
56Charge 1: Five years, which will be the base sentence;
57Charge 2: 12 months;
58Summary charges:
Charge 8, resist police officer: 3 months;
Charge 11, commit indictable offence on bail: Two months;
Charge 12, unlicensed driving: Three months.
59In relation to Charge 13, drive vehicle whilst exceeding prescribed concentration of drug, you are convicted and fined $500 and I grant you a stay of three months to pay the fine.
60In relation to the sentences of imprisonment, I direct that six months from the sentence on Charge 2 on the indictment and one month from the sentences on Charges 8, 11, and 12 be served cumulatively with each other and with the base sentence, producing a total effective sentence of five years and nine months, and I direct that you serve three years and ten months before becoming eligible for parole.
6AAA
61If not for your pleas of guilty, I would have sentenced you to a total effective sentence of eight years, with a non-parole period of six years and three months.
PSD
62I declare that you have already served 211 days by way of pre-sentence detention.
63Counsel, is there anything arising?
64MS LIVINGSTONE-CLARK: No, Your Honour.
65MS CLARK: Sorry, Your Honour. Just with the total effective sentence, did Your Honour say five years and nine months?
66HER HONOUR: Yes.
67MS CLARK: Sorry, Your Honour. I had not added the cumulation from the summary offences. That makes sense.
68HER HONOUR: All right. Very well. Now, I can see that Mr Kovac's pacing at the moment. Did you wish to have a word with him before we leave?
69MS CLARK: Your Honour, thank you, but I have a video conference booked with him for 4 pm today. So, I can discuss the sentence with him then.
70HER HONOUR: Very well. Thank you very much. Then we will now adjourn.
71MS CLARK: As Your Honour pleases.
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