Director of Public Prosecutions v Lim
[2021] VCC 1243
•27 August 2021
m
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 21-01404
Indictment No. L12498972
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ELVIS LIM |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 August 2021 | |
DATE OF SENTENCE: | 27 August 2021 | |
CASE MAY BE CITED AS: | DPP v LIM | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1243 | |
REASONS FOR SENTENCE
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Catchwords: Theft of car; aggravated intentional exposure of police member to risk by driving (x 2); Each charge rolls up two victims; negligent driving during police pursuit. Summary offences: Drive whilst unlicenced and commit indictable offence on bail. 31 at time of offending and as at date of sentence. Lengthy criminal history.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J. Kretzenbacher | Office of Public Prosecutions |
| For the Accused | Ms M. Brown | Emma Turnbull and Associates |
HIS HONOUR:
1 Elvis Lim, yesterday, you pleaded guilty to four charges on the indictment filed before this court. Those charges are one charge of theft of a car, two charges of aggravated intentional exposure of police members to risk by driving, and a charge of negligent driving in the course of a police pursuit. You also pleaded guilty to two summary offences, being an unlicenced driving charge and a charge of committing an indictable offence whilst on bail.
2 You have admitted a lengthy criminal history which is conceded to be of relevance to my task.
3 You were 31 years of age at the time of the offending in October of last year and you were on bail at the time.
4 You turn 32 in October of this year.
5 The summary sets out the correct maximum penalties. I am not going to repeat them all. The aggravated intentional exposure by driving charges (Charges 2 and 3) have a 20 year maximum term and they are what is described in the Sentencing Act1991 as a Category 2 offence. Unless one of the exceptions set out in s5(2H) applies, a sentence involving confinement is required. I note the statement from the Court of Appeal in the recent case of Fariah[1] that there is no burden upon an accused to bring themselves within the exceptions, but plainly they have no application here. Your counsel conceded this, and her concession is undoubtedly correct, so I will waste no further time in these reasons setting out those exceptions or explaining why they do not apply. They just do not.
[1]Fariah v The Queen [2021] VSCA 213
6 You must be sent to prison. The question is for how long.
Facts
7 Ms Kretzenbacher appeared to prosecute on the plea and relied upon a written summary of prosecution opening that was dated 5 August 2021. I was told by your counsel yesterday that that was an agreed summary. It was marked as Exhibit A.
8 In those circumstances, I see no need to set out the full facts in my reasons. I sentence pursuant to that agreed summary. This was plainly serious offending, as was conceded by your counsel. So, I will set out only a very brief summary.
9 Briefly stated then, you stole a car in the early hours of 21 October 2020. That was Mr Zulovic's car, and whilst he made two statements, I take care not to deal with you as a carjacker or as having committed an armed robbery or even a robbery upon him. Paragraphs [6]-[9] of the agreed summary set out the basis of the theft. You had met up with him at a unit in Melton South and relieved him of his car keys and then stole the car. That theft was reported, though for some reason he was not truthful about the true setting. That is unimportant. The important fact is you had stolen his car and you were driving that stolen car later in the morning when the police saw you. It is the driving of the stolen car which aggravates the second and third charges on the indictment. You were driving it erratically. You were weaving in and out of traffic and causing other road users to take evasive action. I am not dealing with you for that conduct, though I am dealing with you for unlicenced driving, of course.
10 Ultimately though, two police cars took up a position on Katrina Road to block your path. Two members were in each car and one of them was about to get out to put some ‘stop sticks’ on the road. Before he could do that, you started to drive towards the two police cars. Both activated their lights and sirens. You continued to drive directly towards them and as the four members braced for impact, you then swerved onto the footpath to the right of the cars, narrowly missing them. Hence, the charges of aggravated intentional exposure of an emergency service worker to risk by driving. As I have said, the matter making it the aggravated offence is that you were driving a stolen car.
11 Now, the committal has not been transcribed but I was told by the prosecutor and, in fact, by your counsel, that police witnesses described only a relatively short distance that you had available to drive towards the police cars. No estimate of speed was made but it is clear that this is not one of those cases where there was extravagant speed involved and, with such speed, the heightened risk of death or serious injury. I am, by the way, not dealing with you for conduct endangering death or serious injury.
12 A pursuit commenced with a number of police vehicles pursuing the car you were driving, including a marked car with lights and siren operating. It was a short pursuit but with you driving erratically, mounting the kerb and driving on the footpath. You seemingly ran out of petrol and ultimately, you were arrested. You were behaving erratically at the scene. In fact, you were crying out for your mother at one point. You were not fit for interview.
13 Your phone, when examined, had messages that had been sent to you, speaking of your theft of the car earlier that morning.
14 You were unlicenced at the time and you were on bail, hence the two summary matters that are before me.
15 Your counsel told me that you had never had a licence to drive.
16 You have been in custody since your arrest on 21 October 2020. All of that time is referrable to this matter.
17 You pleaded guilty in the course of the contested committal hearing. I will say more about that in one moment.
18 So much then for my short summary of the summary. I sentence pursuant to the more detailed agreed statement.
Impact
19 There are no impact statements placed before me. However, these members were placed at risk by you. They were just doing their job, one that is difficult enough at the best of times. They were trying to arrest an offender. That was their duty. As they did so, they braced for impact. No doubt it was an alarming moment in the course of that shift. However, in the absence of impact materials, I really cannot infer the existence of any lasting or significant impact here.
In Mitigation
20 Now, Ms Brown conducted the plea on your behalf and she relied upon a brief written outline, as well as a report from Ms Dluzniak, a clinical neuropsychologist.
21 Your counsel placed before me some details of your family and personal background including your educational and employment history, and your mental health and drug issues. Much of that was in fact in that expert report which she relied upon. She made some submissions as to the relative gravity of the offending. She submitted that you had some prospects of rehabilitation. She conceded the relevance of your past criminal history.
22 It was a brief and realistic plea. There were actually not that many matters raised in mitigation. This is not a criticism of her or you, for that matter. It is just the reality of this case.
23 Ms Brown chiefly relied upon the following matters:
· your early guilty plea in the midst of the global pandemic;
· The presence of some limited remorse;
· The impacts of COVID-19 upon your custodial experience.
24 She submitted that none of the exceptions set out in s5(2H) of the Sentencing Act applied here. She conceded the inevitability of a prison sentence and one requiring the fixing of a non-parole period.
Prosecution
25 Ms Kretzenbacher, on behalf of the Director of Public Prosecutions, was calling for just such an outcome and she too made submissions as to the relative gravity of the offending. The Crown accepted that the aggravated intentional exposure offences were relatively low level examples of an inherently serious offence for the reasons advanced by your counsel. They argued that specific and general deterrence and community protection are matters of some weight here.
Background
26 I will turn now to your background, but I will do so only quite briefly as it is set out in detail in the expert report. There is little utility in my just restating you background. I accept that background placed before me. Very briefly then, you are 31 years of age, born on 3 October 1989. You were born in East Timor and raised there by your parents before coming to this country with your parents as an eight-year-old. You are the eldest of five siblings, and it would seem that you were exposed to some confronting sights and experiences in your homeland. Those matters are spoken of in the report. It was also a reasonably strict upbringing with physical punishment very much routine. You had reasonably fragmented schooling and finished up attempting Year 10. You started an apprenticeship as a boilermaker up in Sydney as an 18-year-old but never went on to finish it. You have not worked for about eight years. Your parents separated when you were 19 or 20.
27 I am told you have never married, and you have no dependents.
28 I enquired directly and was told by your counsel that you are an Australian citizen, so there is no issue of the risk of deportation looming in this case as there is in so many others. I was told that you have four siblings who have stayed ‘on the straight and narrow’. There are some half siblings as well. You are less close to them. Of your parents, who are both alive, you are closest to your mother and you lived with her on you most recent release from prison last year until being asked to leave, owing to your continued drug use. She is still supportive of you and upon your ultimate release, you hope to return to live with her.
29 The expert report placed before me discloses that you function at a pretty low level. You have no control over that. They are just the cards that have been dealt to you.
30 You have had some mental health issues and it would seem that drug use has been implicated in the development of psychosis.
31 Drug use has been problematic for many years, with methylamphetamine being very troublesome for a number of years.
32 Part of your personal background involves a quite sizeable criminal history. There is no purpose in my setting it all out in my reasons. You have committed a variety of offences, some quite serious, including armed robberies, aggravated burglary and drug trafficking. There are some serious enough driving offences and some car thefts. Also, a conduct endangering serious injury. It is not clear to me if that is connected up with driving or not.
33 You have though been given many chances by the courts. You have breached many court orders. You have been sent to prison often enough but continue to offend upon your release. There is a pattern of resuming drug use upon release and you then quickly enough re-offend and wind up back in prison. You have spent a disturbingly large portion of the last decade behind bars. I was told by your counsel that you served out the entirety of the sentence imposed in 2018 with parole being refused by the Adult Parole Board.
34 Well, as to that criminal history, I want you to understand that you do not fall to be sentenced a second time by me for any of that past offending. You have served the sentences which were imposed, but I do have to make judgements as to your prospects of rehabilitation and the need to deter you and protect the community from you. I cannot ignore your past history and lack of response to court orders. I note that you were on bail at the time of this offending and also that you had only been released from your last prison sentence in August of last year. Within a short space of time, then you were on bail in relation to an allegation of breaching an intervention order and you then committed these offences that I am dealing with. I was told that the matters for which you were on bail ultimately did not proceed.
35 I take into account your background as far as I am able to. It cannot greatly reduce your culpability. There is nothing at all in your mental health state or condition which reduces your culpability. Drug use, which no doubt disinhibits you, is not mitigatory.
36 I turn then to consider the other matters raised by your counsel.
Guilty plea
37 The first of those matters is your guilty plea. You offered to plead guilty to these very charges; that offer was rejected, and the committal then got underway with other charges also being in existence. Some of the police witnesses also gave evidence on that first day. Then your offer was accepted on the second day before the next witnesses were called. I accept then your counsel's submission and will treat it as an early plea.
38 Your early guilty plea is significant. The community has been saved the time, the cost and the effort associated with the conduct of a full committal hearing in the Magistrates' Court or a trial up in this court.
39 You have facilitated the course of justice. I can easily see how some might have argued the toss and gone to trial on the aggravated intentional exposure offence in the hope, perhaps, of a verdict on the lesser alternative of aggravated reckless exposure. But you did not. You have taken this early responsibility for your offending by pleading guilty and you have done that in the midst of the disrupted operations of this court arising from the response to the COVID-19 virus. We have a very large backlog of trials. The trial in your case would have formed part of that ever-growing backlog. Your early guilty plea is worthy of significant extra weight in such a setting for the many reasons set out in the decision of Worboyes.[2] I take these various matters into account in mitigation.
[2]Worboyes v The Queen [2021] VSCA 169
Remorse
40 There is some mention of regret in the expert report. Also, I have your early guilty plea. I am prepared then to accept the submission made by your counsel that there is some remorse here. I take that into account in your favour as well.
Rehabilitation
41 I turn now to your prospects of rehabilitation. It is impossible to sugar coat this. You were not some silly teenager committing their first offence - you know that. You are 31 years of age and with an unenviable history before the courts. Steps have been taken in the past to try to lead you away from prison to no avail. For instance, there have been a number of Community Corrections Orders with treatment conditions and two even with judicial monitoring conditions. But they have failed. Sending you to prison seemingly has not deterred you. You have a significant issue with drugs, and you have had that for well over a decade. You have had no employment for many years and little by way of structure awaiting you. You still have family support, which is a positive, but it is not unconditional support. Nor should it be. You will need to demonstrate to others, including your mother, that you have a desire to change and to live by the rules. You still hope that you can change, and that is a positive. I hope that you can. But you will need to make strong efforts to alter your life. Abstinence from drugs is the only way forward for you. If you continue to use drugs and mix with those that do, you will just have no prospects at all of rehabilitation. None. The expert report really says as much. So, it is hard for me to be optimistic. I do hope that you can change, Mr Lim, because your life is just wasting away. I think you sense that. If not now, then when? I am certainly not prepared to write you off. I am not prepared to find that you have no prospects of rehabilitation at all. But I can only be very guarded, and if pressed to apply an adjective as of today's date, I would say that your prospects of rehabilitation are quite poor. But make no mistake. They would rise significantly if you can abstain from drug use upon your release. You must work towards that goal. You actually are still young enough. There is still some hope that you might actually live a very decent life. But only you can control the trajectory of your life going forward and you are not bound just to repeat the same mistakes. So, maybe, just maybe you can change. It really is not too late for you and you should not think that it is.
Ms Dluzniak
42 I have mentioned already the report of Ms Dluzniak. It was not relied upon as attracting any of the six limbs from the case, well known in these courts, of Verdins[3]. Having considered that issue myself, that concession was undoubtedly well made. But that report is still of use, commenting as it does on the things that will need to fall into place for you to succeed upon your release into the community. 'Fall into place' is actually probably the wrong phrase. That phrase suggests some lucky arrangement for you or positive efforts by others which will solve your problems. But it is not a matter of luck. Nor will it depend on steps being taken by others. You will need to take these steps yourself. It will be hard work for you to reinvent yourself, but you must. That report sets out your background in detail, including you level of functioning and, importantly, your sense of frustration at the way your life is panning out. It also highlights that cognitively, there is no impairment or syndrome adversely impacting your prospects. That is at least something. Drugs are obviously heavily implicated in your past offending and they must be addressed by you. You have some insight into that, but little idea how to meaningfully change your life in the future. I am though confident that you want to change your life. Why would you not? Why would you want more of the same that you have had over the last decade?
[3]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)
43 So, listen carefully. That expert report describes the risk of recidivism - in other words, repeat offending - the risk of brain injury and drug induced psychosis, which lies ahead should you do as you have done so many times in the past and resume drug use upon your release. I take into account that report in the ways urged upon me by your counsel. Surely, you must change your life, and now is the time to do it. You have had some time to reflect on these matters. Maybe this time your release from prison will be more successful. I hope it is for your sake, but also for your mother's sake and also, in fact, for the sake of the community.
COVID-19
44 Your counsel relied upon the impact of the COVID-19 pandemic upon your experience in custody.
45 I accept that the COVID-19 virus and the response to it by those running the prisons has increased your prison burden. Prison has been a more stressful environment in the time that you have been there to this point and that is actually likely to continue to some extent into the future. Social distancing has not been easy. No doubt there is worry about catching the virus in such a setting where, unlike someone in the community, there is just no level of autonomy at all. I expect that you were subject to an initial quarantine period. You have also had limitations to visiting and courses from time to time.
46 As to what lies ahead with the pandemic, well it is impossible for me to know. The impacts of the virus upon prisoners had been lessening, with visits and courses getting back underway earlier this year. But we have been experiencing ups and downs as the events of the last few months make plain enough. We had the circuit breaker lockdown in February and the temporary suspension of prison visits. We have had the issues since, including further community lockdowns. We are currently in a lockdown in the community. So, whilst we had been travelling very well in the community, it is not that difficult to see how restrictions may spring up again as they have in recent times. Our community lockdown was extended for a fortnight and let us see if it ends next week. It is not looking too positive. The Delta strain is worrying most governments in this country. I am sure there will be some ongoing anxiety amongst prisoners as to how they will fare. So, I take that into account. I cannot know if limitations in prison will be prolonged or, if once lifted, whether they may start up again down the track, and it is not my task to speculate about those sorts of things. But I do take into account the impact of the virus in the ways urged upon me by your counsel. As I said in the plea, it has not been a good time to be locked up and that looks likely to continue to a degree.
The Offences
47 I turn now then to the offences. Now, your counsel conceded that this was serious offending, and she was right; it is.
48 I have the theft of a car. As I said earlier, I am not dealing with you for armed robbery or even robbery. It is theft of a car and though I know little about the details of it, it seems reasonable to conclude that it was not the subject of any long-term planning. It could not have been. You happened to be at the house that Mr Zulovic visited. I know nothing as to why you stole the car. The fact is, of course, you had no business even being behind the wheel of a car. You have prior appearances for motor vehicle theft. This car was one of significant enough value, as the summary makes clear.
49 The aggravated intentional exposure to risk offending is an inherently serious offence. These charges relate to four police members on duty trying to arrest you. So, the charges roll up two victims in each charge. They intended to stop you. You intentionally exposed them to risk to their safety by driving at the cars as you did. They had lights and sirens on. At least you swerved away. At least there was no actual contact and no injury. They braced for contact, but thankfully, you averted it by swerving at the last moment and narrowly scooting past onto the footpath. So, it is not in the ranks of the most serious examples of this offence where we see, from time to time, outrageous speed and deliberate ramming of vehicles or urgent action taken by a policeman or woman to avoid very serious contact. So, that sort of conduct with high speed and high risk of serious injury and/or death is not present here. You drove only a short distance and it would seem not at great speed. Still, you exposed them to a risk to their safety. It was serious enough offending. As I have said earlier, it is an inherently serious offence, and that is conceded. However, as an example of the offence, I accept your counsel's submission and the prosecutor's submissions that it falls at a relatively low level in terms of the driving and the risk to safety presented in this case.
50 It was obviously spontaneous, arising out of panic and a desire to get away. That will be a common enough setting for this style of offence and one that is in no way mitigatory.
51 Then there was the pursuit. Again, it is not at the high end of offence seriousness, but it is still inherently serious criminal conduct to be driving in that way in the course of a police pursuit.
52 Police have a difficult and dangerous job. It is a job which exposes serving members to risks aplenty without the additional risk of criminals driving in such a way as to expose the on duty member to that added risk to their safety. This offence is unmistakably serious. Parliament saw fit to introduce it and, not just to introduce it, but to fix a 20 year maximum. They saw fit also to list this offence as a category 2 offence. Absent a special reason, there must be confinement.
53 I am dealing with two such offences and each involves two separate members. There is a need to recognise the separate victims, but also to step back and to understand and to recognise that the one act placed them all at risk. The principle of totality is therefore important in this case.
Purposes
54 I am required to consider a number of matters, including the nature and gravity of offending, and the impact of the crimes and the maximum penalties.
55 I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose. It must surrender some ground to some of the other purposes of sentencing in this case. You are, as I have said, 31 years of age, with many efforts in the past by the court to foster your rehabilitation. They have failed. Your prospects are not too strong, but I do not ignore that they exist. I give them weight. I accept the submission made by your counsel that you are not without hope. You are not.
56 Weight must be given though to specific and general deterrence, to protection of the community, to denunciation and to punishment.
57 You must be punished. Your past offending does not aggravate the offences I am dealing with. I must impose a just and proportionate sentence in relation to this offending.
58 I must also denounce your conduct.
59 There are these other purposes of sentencing that I mentioned a short time ago. One of those is the need for this court to seek to deter you from offending in the future. That is the principle of specific deterrence. That is obviously an important purpose here. Courts have tried to deter you in the past but have failed pretty miserably. They have tried to lead you away from crime and from prison and they have failed. Even being sent to prison has seemingly not deterred you. Well, I must try again to deter you from offending. It is an important sentencing purpose and so too, for many of the same reasons, is my need to protect the community from you. That must be given real weight in my task as well.
60 General deterrence is also an important consideration. That relates to the need to deter other offenders. This court must send a message to other individuals in the community who might be minded to commit these serious offences. As to the aggravated intentional exposure to risk by driving charges, a very loud message must be sent to those who may consider engaging in that sort of conduct. Likeminded potential future offenders must understand that there will be sizeable penalties waiting in the wings for those who intentionally expose on duty police members to that heightened risk to their safety by the driving of a car. General deterrence is an important sentencing purpose in this case.
61 I must pay regard to current sentencing practices. It is not a single controlling factor. It is just one of the many matters that I must have regard to.
62 The aggravated intentional exposure offence to which you have pleaded guilty is still a relatively new offence and there is no Sentencing Advisory Council snapshot dealing with it. In fact, there are not even figures held on the online SACStat data site. There are, however, statistics for the lesser offence of aggravated reckless exposure to risk as well as the lesser offence to that of reckless exposure.
63 The fact is there are not many examples of other people sentenced for this particular crime that I am dealing with. Your counsel spoke of the limited examples that she could find. I have consulted the relevant portions of the Judicial College of Victoria sentencing manual 2.5.1 and 2.5.2 and looked at the various cases within. Many of those cases relate to the lesser offence of aggravated reckless exposure, which has half the maximum penalty. I have looked at the cases dealing with the aggravated intentional exposure offence, including the cases of Borg[4], Turnbull[5] and Clavell[6]. I have also looked at the case of Jaeger[7], which your counsel took me to. That conduct was obviously far worse than yours and resulted in physical injury to two police members who had their car deliberately rammed. Likewise, the conduct in the case of Borg was more serious. In fact, the same could be said of much of the conduct described in the cases, even those dealing with the lesser offence of aggravated reckless exposure.
[4]DPP v Borg [2020] VCC 60 (“Borg”)
[5]DPP v Turnbull [2020] VCC 1299
[6]DPP v Clavell [2020] VCC 1437
[7]Jaeger v The Queen [2020] VSCA 116
64 Having done what I can to look at other cases though, at the end of the day what I then must then do is pass an appropriate sentence in relation to your crimes. Even if there had been relevant statistics (and there are not), my sentencing outcome would not be dictated by what the statistics told me had been the most common past sentencing outcome, no more than it would be by actual sentencing outcomes in other cases. I am exercising a sentencing discretion in relation your case. There is no such thing as one correct sentence. None of these other cases stand as some form of precedent. They are not. There are differences in conduct and in personal background and in criminal history. Also, the differences in maximum penalty that I have spoken of. What is critical is that I deal with you for your crimes, taking into account the matters in mitigation and aggravation in this case.
Totality
65 I take into account the principle of totality of sentence. It is important here, given the very tight time frame and the relationship between the offences.
66 I have engaged in a last look at the sentences imposed by the court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you and to ensure that the overall effect is commensurate with your overall criminality. I do not accept that there would be any warrant or justification for complete concurrency as between Charges 2 and 3 in the event that I was passing separate sentences on each charge. If that were so, it would mean that a charge involving five or six members being exposed to a risk to safety would be no more serious that one member being exposed to a risk to safety. That just cannot be right. Here, there were multiple victims. Each was exposed to the risk to their safety. The Crown sensibly rolled two victims into each charge. They need not have, but I am dealing with four victims who were exposed to the risk to their safety. I asked counsel whether an aggregate sentence was open. Each member of counsel said that it was. I believe it is both open and appropriate to deal with you on those two charges by way of an aggregate sentence, and that is what I will do.
67 I have a number of different crimes and some with differing elements. I have these multiple members placed at risk. There is a very tight time frame across all the charges on the indictment. You stole the car and the rest of the offending flows from that decision. There was the desire to escape the scene, no doubt in part motivated by your being behind the wheel of a stolen car. Then you drove from the scene amidst the pursuit. I do not lose sight of the fact that Charge 2 and 3 arise from your one act of driving at the two police cars. There were not separate acts placing the members at risk. Further, as I have said, all the offending on the indictment occurred, really, within minutes, with the exception of the theft, obviously.
68 I have the presumption of cumulation in relation to the category 2 offence by virtue of s16(3D), as well, as I believe, the presumption relating to offences committed whilst on bail in s16(3C). As I have treated it as a matter of aggravation that you were on bail at the time, I believe that I would be doubly punishing you to then cumulate the various sentences pursuant to section 16(3D) or (3C), so I will not. Neither of those provisions, s16(3C) or (3D), ousts the principle of totality here, and it is an important consideration in my view.
69 Prison is always a disposition of last resort. Your counsel concedes that I must imprison you and for a period where I will be required to fix a non-parole period. That submission is undoubtedly correct.
70 As a matter of law, I will be required to fix a non-parole period. The Adult Parole Board will have the capacity to consider releasing you at some point before the lapse of your head sentence. You have been down this route before some years ago. As I said earlier, on the most recent sentence in 2018 where a non-parole period was fixed, I was told that you served out the entirety of that sentence.
71 I can make no assumptions as to whether or not you will be released on parole on this occasion. In fact, I must not even speculate about that. That will be in the hands of the Adult Parole Board. It will be between you and them.
72 I must work on the understanding that you will serve every day of the head sentence which I will soon pronounce.
73 However, it is very plain to me that you will need very sizeable support and structure upon your release, whenever that is. Release without structure and assistance will not be that likely to succeed. The expert report makes that pretty clear. So, I will provide my sentencing reasons and that expert report of Ms Dluzniak to the Adult Parole Board, as this material may assist you and them in the discharge of their function.
Sentence
Disposal
74 There is a disposal order in this case. I am prepared to make the disposal order, but I do so really only as there is no opposition to it being made. I am not, by making the order, to be taken as finding that the scissors had any role in the actual taking of the car - they did not. The factual basis of the theft is as set out in the agreed summary. They were, however, found in the stolen car and that fact, when viewed with the minimal value and lack of opposition to the making of the order, persuades me to make the order.
75 So, I have signed the disposal order sought pursuant to the provisions of s78(1), and it follows then that those items referred to in the schedule will be handled and dealt with in the manner contemplated by the signed order. We are dealing, really, with matters of minimal value, scissors, cannabis and a cigarette container. So, they are all the subject of that order.
Indictment
76 So, I will move now to pass sentence. I am sorry it has taken so long to get to this point, but I have to explain to you and to everyone else who has a role in any of this, why I am doing what I am doing. You may lose track of the numbers or what they all mean. I will explain it all at the end. So, let me move then to the sentences.
77 On Charge 1, that is the theft of a car, you are convicted and sentenced to nine months' imprisonment.
78 On Charges 2 and 3, they are the charges of aggravated intentional exposure of a police officer to risk by driving. I repeat, there were four members who were intentionally exposed to a risk to their safety. I believe an aggregate sentence is both open to me and appropriate.
79 On those two charges, you are convicted and sentenced to an aggregate term of two and a half years' imprisonment.
80 On Charge 4, which is the charge of negligent driving in the course of the police pursuit, you are convicted and sentenced to six months' imprisonment.
Related summary offences
81 On the summary charge of unlicenced driving, you are convicted and sentenced to seven days' imprisonment. On the offence of committing an indictable offence on bail, you are also convicted and sentenced to seven days' imprisonment.
Cumulation
82 I make the following orders then for cumulation. As I say, I will explain all this in a moment.
83 The base sentence is therefore the two and a half year aggregate term imposed on Charges 2 and 3.
84 I direct that:
· three months of the sentences imposed on Charge 1 (theft) and
· one month of the sentence imposed on the charge of negligently driving in the course of the pursuit (Charge 4)
is to be served cumulatively upon the base sentence and upon each other.
85 The sentences imposed on the summary offences will be served concurrently with each other and with all other sentences.
86 I am then, to this extent, otherwise directing concurrency under s16(3C) and (3D).
Total Effective Sentence
87 So, these orders produce a total effective sentence of 34 months or two years' and 10 months' imprisonment.
NPP
88 I fix a period of 20 months, during which you will not be eligible for release on parole.
Section 18
89 You have been in custody already for the period of 310 days and that period, therefore, is declared as having already been served by you under this sentence. So, you get credit for that, of course.
Section 6AAA
90 I have told you that I have taken into account your guilty plea. Had you pleaded not guilty and been found guilty by a jury, I would have convicted and sentenced you to four years' four months' imprisonment. I would have and fixed a non‑parole period of three years and two months. And that s6AAA declaration is to be noted in the records of the court.
Licence order
91 The final matters then are the licence orders. On the charge of car theft, I must make an order against your licence or right to drive (Charge 1). You are disqualified from obtaining any licence or permit and from driving in this State for a period of six months commencing from today.
92 There is also a requirement to make a licence order in relation to Charge 4, that is the negligently driving whilst being pursued. There is a 12 month minimum period in that case. You are disqualified from obtaining any permit or licence and from driving in this State for a period of 12 months commencing from today.
93 As to the two charges of aggravated intentional exposure of the police to risk by driving, there is also a requirement to make a licence order. There is a 24 month minimum period in that case.
94 You are going to prison for a substantial period. Whenever you are released, and I do not know when you will be, you will need to try to establish yourself back in the community. It will not be that easy. It has not been in the past. There will be challenges for you. One challenge will be to get back into the workforce. You may want, I hope you do at some stage, to try to get a licence to drive. A driver's licence may be of some use in your ongoing rehabilitation. It can actually be a useful thing to have in the job market. So, there is something of a tension between your rehabilitation on the one hand and both punishing you and protecting the community from you on the other. You are receiving sizeable enough punishment by virtue of the prison sentences that I have pronounced. A licence order is both punitive but also protective.
95 However, given the nature of the driving in this case, I believe that this licence order must have a tangible effect upon you, and the only way it can is if it is fixed by way of some future defined event. Otherwise, you would potentially serve the whole disqualification period whilst in prison, and if that be so, it would have no actual or practical impact upon you at all. So, I model the form of my order on that form discussed in cases such as Tran (2002) 4 VR 457 and Caldwell (2004) 8 VR 1.
96 On those two charges, so Charges 2 and 3, I disqualify you from obtaining any licence or permit and from driving in this State. Those orders will commence today. You are disqualified from obtaining another licence or any permit or from driving in this State, effective from today's date and ending 15 months after you are first released from custody, whether on parole or upon the expiry of the sentence. What that means is that you will be disqualified from driving upon your release from prison and that will be for a 15 month period upon your release.
97 Thereafter of course, to be able to drive, you would need to actually do what you have never done before and go through the process of obtaining a licence to drive a vehicle. I hope that you can in the future.
98
Let me just see if there are any other matters. Firstly, from you,
Ms Kretzenbacher, any matters from you?
99 MS KRETZENBACHER: No, Your Honour.
100 HIS HONOUR: And from you, Ms Brown?
101 MS BROWN: No, Your Honour.
102 HIS HONOUR: All right. Well, that completes the matter then. And once I have revised these reasons, I will get them back, no doubt, early next week, I will revise them and make them available to the parties. Ms Brown, we have got the link for a little bit longer. Are you wanting to, I think, do as you did the other day and use it just briefly to have a chat to your client?
103 MS BROWN: Very briefly, I would appreciate that, Your Honour, thank you.
104 HIS HONOUR: All right, I will do that. But note, as I said the other day, it is not a private communication, it will not be me hearing it or the prosecutor or anything like that, but my staff will be here. But you will no doubt need to discuss what has occurred; make sure you client understands it. Of course, I am sure he will. But you will need to, at some stage - probably not in the course of that discussion - discuss his rights in relation to the sentence, presumably you will be arranging some other form of video conference with him, will you?
105 MS BROWN: Yes, Your Honour, a more comprehensive and private conversation will take place in due course.
106 HIS HONOUR: All right. Let me just - I will just sign this order then.
107 I will just consider the form of the order. I will probably sign it in chambers, I think, rather than having you all sit there. Well, that completes the matter then. So, Mr Lim, you can still see and hear me?
108 OFFENDER: Yeah.
109 HIS HONOUR: So Ms Brown is going to have a chat to you and discuss the outcome here, but she will be teeing up a more comprehensive sort of discussion with you, no doubt early sometime next week or something like that. But I will leave the Bench in a moment, the prosecutor will exit the hearing and you will be free to have a brief chat with her, but she will have a more detailed discussion with you about what has happened today and your rights in relation to it. But I am sure you understand the outcome. I have sentenced you to a total effective sentence of two years and 10 months' imprisonment, with a non-parole period of 20 months. So, I will leave the Bench in a moment and then you will be free to have a bit of a chat with her, all right?
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