Director of Public Prosecutions v Long
[2022] VCC 1756
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON SITTING AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CR-22-00186
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW LONG |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May and 26 September 2022 | |
DATE OF SENTENCE: | 5 October 2022 | |
CASE MAY BE CITED AS: | DPP v Long | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1756 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Plea of Guilty – Theft of Motor Vehicle – Dangerous Driving while Pursued by Police – Presence of Illicit Drugs and Imitation Firearm – Offences Committed on Bail - Remorse – Full Admissions – Mental Health – Psychiatric Issues – Failure to Take Medication.
Legislation Cited: Bail Act 1977; Control of Weapons Act 1990; Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Mental Health Act 2014; Road Safety Act 1986; Road Safety Road Rules 2017; Sentencing Act 1991.
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169; DPP v Bourke [2020] VSC 130; Chenhall v The Queen [2021] VSCA 175.
Sentence: Combination Sentence – 3 years imprisonment with a non-parole period of 24 months – Drivers Licence cancelled and disqualified from obtaining a new licence for 36 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Teo | Office of Public Prosecutions |
| For the Accused | Ms B Kelly (Plea & Further Plea) Mr A Coote (Sentence) | Camerons Lawyers |
HIS HONOUR:
THE CHARGES
1Matthew Long has pleaded guilty on indictment to charges namely:
1. Burglary (maximum penalty 10 years’ imprisonment);
2. Theft (maximum penalty 10 years’ imprisonment);
3. Damage Emergency Service Vehicle (5 years’ imprisonment);
4.Dangerous or Negligent Driving While Pursued by Police (maximum penalty 3 years’ imprisonment);
5. Prohibited Person Possess Imitation Firearm (10 years’ imprisonment);
6. Possession of a Drug of Dependence (1 year imprisonment).
2He has also consented to this Court hearing, and has pleaded guilty to, the following related summary offences (RSOs):
10. Drive Whilst Disqualified (maximum 10 years’ imprisonment);
16. Use Mobile Phone Whilst Driving;
17. Commit Indictable Offence Whilst on Bail (3 months’ imprisonment);
25.Drive Whilst Exceeding PCD which is a prescribed concentration of drug.
3As I will outline, this offending was both very dangerous and utterly bizarre. The latter being in no small part due to the accused’s apparent poor mental health, confounded as it was by drug use and the cessation of necessary medication.
4The offending demands a period of imprisonment involving a head sentence and a non-parole period.
5My reasons for imposing this sentence are as follows. I will begin with the offending.
THE OFFENDING[1]
[1]Exhibit A: Summary of Prosecution Opening for Plea dated 4 April 2022.
6At approximately 10.00 pm on Friday, 9 July 2021, the accused spoke with Cobram Police asking them for assistance in getting a ride to Melbourne with any members that were travelling in that direction.
7Members advised the accused that this would not be possible, with the accused stating he would head to Brian Hicks Transport to see if anyone was going to Melbourne.
8The accused attended Brian Hicks Transport and found the gates locked. He then entered the yard of McColl’s Transport via an open gate.[2] This is Charge 1, Burglary.
[2]Depositions, Exhibit 23: Footage McColl’s Transport Yard; ROI Q&A 12.
9He walked through the yard and entered the business common room. He wrote a note to the company detailing that he had taken one of the trucks to get fixed so he could save ‘Kiwi’s’ job and get a job himself. The keys to all trucks parked in the depot yard are kept in this common room, located on a white board inside the door.
10Long removed the keys to a Volvo B-double truck, which had been parked in the yard at 7.00 pm that day. The truck was registered in name of McColl’s Equipment and was valued at $1.5m.[3]
[3]Statement of Douglas Owen at [14], Depositions, p. 60.
11The accused is depicted on CCTV walking around the truck yard. A short time later at 11.30 pm he can be seen returning to the office, before going back to the prime mover and driving the truck from the yard.[4]
[4]Depositions, Exhibit 23: Footage McColl’s Transport Yard; Exhibit 24: In Truck Footage.
12The accused’s Victorian Driver’s License expired on 21 December 2010 and he was not licenced at the time of the offending.
13He drove the truck to his address in Barooga, where he collected personal items before driving the prime mover back to McColl’s Transport yard and placing it in the wash bays.[5]
[5]Depositions, ROI Q&A 189.
14The accused is depicted on CCTV footage washing the truck before driving it out of the yard again at approximately 2.00 am on Saturday 10 July 2021.[6]
[6]Depositions, Exhibit 2: Driver’s Licence Extract.
15He had exited the yard when witness Bextream arrived back at the depot. The accused pulled up alongside Bextream and told him that he was taking the truck to Melbourne to have it fixed as there was a problem with the trailers.
16Bextream entered the yard to complete his end of shift requirements, when the accused commenced calling Bextream over the UHF radio, telling him he was taking the truck and trailer to the Geelong depot to get fixed.
17Bextream contacted night supervisor Cochrane and detailed the situation, noting that there were two trucks in the yard. Cochrane confirmed there should have been three. Cochrane contacted manager Owen, who then reported the theft of the truck to Police.
18The accused drove the truck from Cobram along the Murray Valley Highway to Strathmerton before turning left onto the Goulburn Valley Highway and travelling through to Shepparton.
19Wangaratta Police received an initial report from Owen that a B-double prime mover had been stolen from McColl’s in Cobram and was travelling southbound from Cobram towards Shepparton. Owen was monitoring the truck via the live GPS data on his mobile phone.
20At approximately 3.05 am, Police Communications provided information of the stolen truck to the Shepparton Patrol Area Service.
21At 3.06 am, Sergeant Willis observed the truck with registration number affixed on Numurkah Road, Shepparton heading south towards the Shepparton Central Business District. The truck was observed approaching the intersection of Balaclava Road, Shepparton.
22Sergeant Willis had been travelling north on Numurkah Road, Shepparton and conducted a U-turn to intercept the truck. Sergeant Willis activated the marked police vehicle lights and sirens in order to intercept the truck. The accused slowed down and pulled over to the left-hand side of the road just prior to the Balaclava Road intersection. Sergeant Willis positioned the police vehicle in front of the truck.
23As Sergeant Willis exited the police vehicle, the accused pulled out and manoeuvred around Sergeant Willis’ vehicle before travelling south for 150 meters prior to becoming stationary again.
24Sergeant Willis again took up a position in front of the truck creating a safety corridor between his vehicle and the truck. Sergeant Willis approached the driver’s side of the vehicle and the accused wound the window down. Sergeant Willis told the accused to turn the truck off.
25The accused did not comply with Sergeant Willis’ direction and after two further requests to turn the truck off, Sergeant Willis produced his OC foam and displayed it to the accused.[7][7]Statement of Sergeant Ron Willis at [8], Depositions p. 75.
26The accused started to wind the window up, put the truck back into gear and started to move off. Sergeant Willis smashed the driver’s side window and deployed a large can of OC spray.
27The accused continued to drive, mounting the left side gutter and driving up onto the grassed area of the nature strip and footpath of Wyndham Street, Shepparton. As the truck travelled along the nature strip area the trailer collided with the entire left-hand side of Sergeant Willis’ vehicle. The trailer of the truck pulled the vehicle forward and ripped the front bumper bar off the vehicle and caused extensive damage along the passenger side of the vehicle.[8] This is Charge 3, Damaging Emergency Service Vehicle.
[8]Ibid at [11]–[12]; Depositions, Exhibit 10: Photographs of Damage to Police Vehicle.
28First Constable Thurtell and Constable Murray approached the scene as the accused was moving off. As they approached Sergeant Willis’ location, First Constable Thurtell observed Sergeant Willis attempting to put distance between himself and the truck. Sergeant Willis directed Constable Murray and First Constable Thurtell to pursue the accused.[9] First Constable Thurtell and Constable Murray took up position behind the truck and activated their lights and siren. The accused continued along Wyndham Street, Shepparton failing to stop and did not slow down on approaching red traffic signals or intersections along Wyndham Street, Shepparton.[10][9]Statement of First Constable Thurtell at [6]–[7], Depositions p. 84.
[10]Ibid [8]–[9]; Statement of Constable Murray at [7], Depositions p. 92.
29The accused continued driving along Wyndham Street, Shepparton. He approached the intersection of Wyndham and High Streets Shepparton which was displaying a red traffic signal. He did not slow down for the intersection nor the red traffic signal. He entered the intersection of Vaughan Street and Wyndham Street against the red traffic light and again at the Sobroan Street and Wyndham Street intersection.[11] This is the commencement of Charge 4, Dangerous or Negligent Driving while being pursued by Police.
[11]Statement of First Constable Thurtell at [10], Depositions p. 84; Statement of Constable Murray at [7], Depositions p. 92.
30Police continued to follow Long with lights and sirens activated through Shepparton and across a bridge at Kialla. The accused slowed down on the northern side of the Kialla Bridge and came to a complete stop before placing the truck into reverse and reversing the truck approximately one and a half metres towards First Constable Thurtell and Constable Murray’s vehicle.[12]
[12]Statement of First Constable Thurtell at [13], Depositions p. 84; Statement of Constable Murray at [13], Depositions p. 92.
31He then placed the truck back into gear and continued driving north along the Goulburn Valley Highway towards Murchison, refusing to stop. He was at times observed moving to the centre of the road and onto the north bound lanes of the highway. The accused turned right onto the Violet Town-Murchison Road and travelled through the township of Murchison.[13]
[13]Statement of First Constable Thurtell at [12], Depositions p. 84; Statement of Constable Murray at [10], Depositions p. 92.
32He again brought the truck to a stop, placed it in reverse and reversed towards First Constable Thurtell and Constable Murray’s vehicle. Constable Murray told First Constable Thurtell to also reverse, with First Constable Thurtell broadcasting a message via the Police radio for all units to reverse to avoid a collision.[14] The accused again placed the truck into gear and drove off.
[14]Statement of Constable Murray at [13], Depositions p. 92.
33Senior Constable Arthur and Constable Smith had positioned themselves at the corner of the Goulburn Weir Road and Snipey Road, Goulburn Weir, ready to deploy a tyre deflation device otherwise known as ‘stop sticks’ as the accused approached their position.
34Senior Constable Arthur deployed the stop sticks from Snipey Road across Goulburn Weir Road. The stop sticks were successful in lowering the speed of the truck as both front tyres were fully deflated.
35The accused continued along Goulburn Weir-Murchison Road towards Kirwans Bridge and Nagambie with sparks emanating from the front rims. Still, Long continued to drive.
36He approached Kirwans Bridge which is a single lane wooden bridge built in approximately 1890. That bridge is subject to both height and weight restrictions and is narrow, at a length of 308 metres. The bridge has a weight limit of 3 tonnes and the truck that was driven by the accused weighed more than 10 tonnes.
37At 3.57 am the accused crossed Kirwan Bridge at a slow speed with the hazard lights activated. First Constable Thurtell and Constable Murray followed the accused from a distance across Kirwans Bridge. The bridge had a height limit, marked with an overhead board, which was brought down by the accused when he drove the truck across the bridge.[15]
[15]Statement of First Constable Thurtell at [18], Depositions p. 84; Statement of Constable Murray at [14], Depositions p. 92.
38After exiting the bridge, the accused travelled into the township of Nagambie and drove south on O’Dwyers Road. At approximately 4.33 am, a further set of stop sticks were deployed at the intersection of Helvertia Lane and O’Dwyers Road by Constable Bentley and Constable Abbott. As the front tyres had already been deflated, the rims hit the stop sticks which resulted in no change in speed.
39During this time, at 4.21 am, the accused contacted the Police Assistance Line where his phone number was obtained. Acting Sergeant Howell contacted the accused in an attempt to have him surrender himself to police. At 4.33 am, the accused stated he wouldn’t pull over as he needed to take the truck to Geelong to get serviced.
40Acting Sergeant Howell spoke with the accused again at 4.53 am, and the accused stated he was willing to talk about pulling over if the police members pulled back and did not deploy OC spray.[16] This is RSO 16, Use Mobile Phone while Driving.
[16]Statement of Acting Sergeant Howell at [3]–[9], Depositions p. 145.
41The accused continued along O’Dwyers Road, Nagambie navigating a large roundabout at Mitchellstown Road, turning right into Avenel-Nagambie Road, Nagambie, Tahbilk. The accused travelled along the Avenel-Nagambie Road for five kilometres before taking a sharp left-hand bend and crossing into the left-hand shoulder of the road. Where the truck came to a stop at approximately 4.56 am, the bare rims becoming entrenched in the soft shoulder. The accused activated the hazard lights and attempted to reverse the truck out but to no avail.
42Acting Sergeant Howell contacted the accused at 5.01 am, who stated he would get out of the truck if he wasn’t rushed.
43At 5.05 am, the accused contacted Triple-0, telling them he had a firearm. Contact with the accused was lost for a period of time. A police negotiator sent the accused a text message from his mobile phone, asking him to walk out of the truck and make his way to the rear of the truck with his hands in the air.
44At 5.41 am, a police negotiator commenced communication with the accused.
45Finally, at 7.42 am, the accused surrendered to police by exiting the vehicle via the passenger side door and spoke with the police negotiator.
46That this episode ended the way it did is a credit to those members who were involved.
SEARCH AND ARREST
47The accused was arrested a short time later and conveyed to Shepparton Goulburn Valley Hospital under s.351 of the Mental Health Act 2014 (Vic) by First Constable Warwick and First Constable Bochtler.
48A search of the truck located the accused’s backpack in which the following items were found:
(a) An imitation Handgun that fires gel projectiles, that was located between the driver’s seat and passenger seat.[17]
(b) A small black scope belonging to the handgun was located in the driver’s footwell.
(c) Several bags of Gel Blaster pellets were located in the cabin.
(d) Loose cannabis, two vials containing cannabis, two Ziploc bags containing cannabis and a foil containing cannabis.[18] All constitute Charge 6, Possession of a Drug of Dependence.
[17]Statement of Detective Senior Constable Brock at [28], Depositions p. 166.
[18]Ibid at [29], Depositions p. 166.
49A search of the accused at the Shepparton Hospital by First Constable Bochtler located a Ziploc bag containing cannabis.[19] The total weight of cannabis found was 9.7 grams.[20] This was also part of Charge 6.
[19]Statement of First Constable Bochtler at [39], Depositions p. 114.
[20]Certificate of Botanist, Depositions p. 453.
50He had another two vials of Gel Blaster pellets in a small green bag which were located.
51A blood sample was taken from him and he was found to cannabis in his system.[21] This is related to RSO 25, Drive While Exceeding a Prescribed Concentration of Drugs.
[21]Toxicology Report, Depositions p. 455.
52The accused was cleared from the Shepparton Hospital and returned to the Shepparton Police Station at 1.00 pm on Saturday, 10 July 2021. He was assessed by a Victoria Forensic Medical Officer and deemed to be unfit to be interviewed.
53He was ultimately found fit for interview some two days after his arrest, at 9.40 am on Sunday, 11 July 2021. He was interviewed and gave a very detailed version of events, making several admissions to the offending.
54At the time he was subject to bail, having been granted bail on 6 July 2021 by the Cobram Police to appear at the Cobram Magistrates’ Court on 27 October 2021.[22]
[22]Depositions: Exhibit 1 – Bail Extract. This was in relation to the matter where FITZGERALD is the informant that occurred back in 2016.
CASE HISTORY
55The accused was remanded in custody on that date. As of today’s date, he will have served 452 days of pre-sentence detention, not including today.
56A filing hearing was held on 12 July 2021. The first committal mention took place on 5 October 2021 where a plea offer was made. As this required further discussion until 16 November 2021, the discussions were ongoing on a later date and a second committal mention was also adjourned. On 14 December 2021, the matter was set down for contested committal but resolved as a plea of guilty in its current form before that hearing took place. The accused pleaded guilty in the Magistrates’ Court on 11 February 2022 and the matter was listed in this Court for plea. I consider this to be an early plea. I will deal with the significance of that later.
57The matter first came before me in the Shepparton circuit in April 2022. The plea commenced on 20 May 2022 and for reasons I will elaborate on later, was adjourned to September to permit further psychological and neuropsychological reports to be furnished to the Court.
58For completeness I note I have been provided with the summaries of outstanding summary matters where the informants are Basham, Tanner and Fitzgerald. The latter two apparently are to proceed as pleas of guilty at a later date.
MATTERS PERSONAL TO THE ACCUSED
59Mr Long’s personal history was set out in the outline of written submissions filed on his behalf drawing where necessary on the reports tendered on his behalf that provide valuable context to the offending.[23]
[23]Exhibit ML-1: Defence Outline of Plea Submissions dated 17 May 2022.
Personal and familial history
60Mr Long was 44 years at the time of the offending and is now 45. He is the eldest of three sons to Barry and Melanie Long. He has two brothers, Shane and John. He is close to his brothers and his family have consistently appeared via Webex during the plea in support of him. The family moved around a lot because his parents were dairy farmers involved in share farming. His father also drove trucks.
61Growing up at times, he assumed parental responsibility for his younger brothers because his parents were not always available due to the demands of work. There was conflict and unease at home. He ran away from home at the extremely young age of 13, living with this grandmother before being placed in foster care. He returned home before leaving home again at 15 and taking his 12-year-old brother with him. They lived, unsupervised, in a caravan park.[24]
[24]See Exhibit ML-4: Report of Dr Kelly Sinclair dated 29 August 2022, p. 2–3; Exhibit ML-5: Forensicare Report of Dr David Batten dated 29 June 2022 at p. 2.
62This is not a firm foundation from which to build a life, although it was not put in the plea that his childhood and adolescence was of such deprivation that would it enliven the principals in Bugmy v The Queen.[25] These formative years are important contextual matters that provide the backdrop to his poor mental health. I take them into account.
[25](2013) 249 CLR 571 – see Exhibit ML-1: Defence Outline of Plea Submissions dated 17 May 2022 at [51]–[56].
Education and experience at school
63As the family moved around, Mr Long attended at least six primary schools. He was socially ostracised and isolated and spent time ruminating about problems at home. He made no significant friendships.[26]
[26]Exhibit ML-2: Report of Warrren Simmons dated 22.04.2022 at [8].
64His high school years were also disrupted because of his lack of stable accommodation. He completed Year 10 at St. Augustine’s College in Kyabram.[27]
[27]Ibid.
Psychiatric history
65At around this time, aged 17, he had two psychiatric admissions to the Beechworth Hospital in October and November 1994.[28] This occurred because of suicide attempts.
[28]Exhibit ML-3: MHARS Psychiatric Summary dated 27 April 2022, p. 2.
66His early adolescence and adult life have since been marred by poor mental health. I note he used cannabis early in life in order to escape the more severe manifestations of his anxiety. This commenced as early as the age of 15.
67The interplay between that poor mental health and the matter before me is the subject of greater explanation and analysis later in these reasons.
Employment
68After leaving school, Mr Long worked as a console operator at a petrol station. Perversely, he was involved in an attempted robbery on his workplace, where an employee was assaulted. He received a sentence for this offending at the Melbourne County Court on 18 April 2000. That sentence was 3 years’ imprisonment with a non-parole period of 12 months.
69Subsequently, he worked as a truck driver for four different companies, which in a way informs some of the twisted logic of this offending.
70He has not worked for the past 10 years because of his mental health. He is in the receipt of a disability pension.
Interpersonal and intimate relationships
71Mr Long ends all relationships, and is scared to become involved with others.[29]
[29]Exhibit ML-2: Report of Warrren Simmons dated 22 April 2022 at [10].
72He had one significant relationship at age 25 years. He was in a relationship for two years with Louise who was much older than him. That relationship broke down in the context of the presentation of his bipolar mood disorder.[30]
[30]Ibid [12].
73Psychologist Warren Simmons expresses the opinion that Mr Long’s problems with relationship appear to be consistent with his personality problems with borderline traits.[31]
[31]Ibid [26].
Criminal history
74His criminal history is extensive, dating back to 1994. He has prior convictions for dishonesty matters, including burglary and a number of theft of motor vehicle charges, drug matters, violent matters and driving matters.
75He has been sentenced to community-based dispositions, intensive corrections order, suspended sentences and terms of imprisonment with head sentences and non-parole periods.
76He has breached supervisory orders and suspended sentences in the past. He was sentenced to a suspended sentence in 2014 for theft of a motor vehicle, burglary and theft, exceeding the prescribed concentration of drugs and other offences.
77He states that many of the offences, especially in his early adult years, were committed out of necessity, as he was effectively homeless and without a means of providing for himself. He acknowledges the drug offences were due to a dependence on cannabis that he has been unable to control. Further, his poor mental health at the time contributed to a significant number of other offences, including some of the more serious ones. This is a fact which the Court has apparently considered in the past when one refers to his prior criminal history.
78He was last sentenced by the Milton Local Court in New South Wales in November 2016 where he received 12 months’ imprisonment suspended for 12 months. This series of offences appears to have also involved a police pursuit. That year in New South Wales, Mr Long committed a large number of driving offences that resulted in his licence being cancelled for two years.
79His driving history is poor, there are a litany of driving matters dealt with in 2010 and 2016 in New South Wales. They all involve breaches of licence conditions and, as mentioned, one offence was specifically described as a police pursuit in 2016.
80In 2014, he was dealt with for theft of a motor vehicle, driving while disqualified, exceeding the prescribed concentration of alcohol and vehicle registration offences. In 1999 and 2000, there are further offences of driving while disqualified.
81In 2016, the Fitzgerald matter, which is an outstanding matter, involved driving on the wrong side of the road, travelling at speed and colliding with another car. Again, he appeared to be substance-affected, was in possession of cannabis and not wearing a seat belt. The vehicle driven was not registered.
82His poor compliance with Court orders, as evidenced by driving while disqualified and being in breach of bail conditions, is concerning.
83Though, having set out that history, I note that Mr Long had a period of five years following the sentence in 2016 during which he managed to remain offence free. The reason for this was apparently his adherence to psychiatric medication and a cessation of marijuana use.
84Sadly, at the time of this offending he was somewhat estranged from his family, his mother noting he simply wasn’t himself. He was living in rental houses or a caravan park, socially isolated, and dependent on alcohol or cannabis to even leave the house. Further, he was unmedicated for more than a year and clearly unwell.
THE OFFENDING
85I will turn now to the offending. The burglary and theft offences are, as are most of them, bound up together as part of a delusional or manic episode. True it is he selected a yard with trucks in it, but this aspect of the offending appears to be a means to an end. He walked through an open gate, it seems a place where his father might have once worked. He needed a truck purportedly in order to get it repaired and/or obtain work. He wrote a note about the truck and even washed it. He gave the impression of a man who was going about his legitimate working day as a truck driver.
86The burglary and theft are not terribly sophisticated, although they were purposive and not haphazard. I infer that given his work history he knew the truck was worth a substantial amount of money, although there is no evidence he knew exactly how much it was. Nor is there evidence that it was stolen for that reason, that being a reason related to its dollar value. This fact distinguishes it from many offences involving the theft of large expensive vehicles. The vehicle was recovered, albeit damaged.
87The truck was obviously the focus of his attention and used to engage in the appalling and dangerous driving described above.
88The truck was huge. It was a B-double prime mover. It weighed more than 10 tonnes. One needed to be sober, coherent, clear of mind and licenced in order to drive it safely. Mr Long was none of those things.
89The gravamen of the offending before me really is Charge 4. In my view, other offences are essentially preparatory to, ancillary to or incidental to that offence.
90The driving offending lasted for close to two hours, from 3.06 am to 4.50 am. Then there was a further negotiation phase from 5.05 am to 7.42 am. Long had travelled a distance of more than 120 kilometres.
91Here, the dangerous or negligent driving while being pursued is the most serious of the conduct, and surprisingly it carries only a three year maximum penalty. The particulars of this offence underscore the gravity of it:
(a) Manoeuvring in close proximity to Willis,
(b) Entering at least two intersections against a red traffic light,
(c) Reversing towards a stationary Police vehicle,
(d) Driving on the incorrect side of the road,
(e) Continuing to drive after the front tyres were deflated,
(f) Driving a 10.5 tonne truck over a bridge with a 3 tonne limit.
92As counsel for the accused noted in her submissions, an assessment of the degree of danger posed by Mr Long’s driving conduct while being pursued by police is informed by:
(a) the setting in which the driving occurred, including in built up areas,
(b) the visibility on the road,
(c) the large size of the vehicle,
(d) the relatively lengthy duration of the driving about 2 hours. And I can add to that, the distance travelled,[32]
(e) that the driving occurred in circumstances where he was drug affected, which self-evidently increases the risk to other road users.
[32]To which I should add, the substantial distance travelled.
93To be weighed in with these matters and elaborated in oral submissions are the fact that:
(a) Mr Long was not driving at an excessive speed,
(b) at times, he was seen to be driving at a slow speed and made efforts to correct his course when he went onto the wrong side of the road,
(c) luckily, given the time of night, there was limited exposure to other road users,[33]
(d) and it was put, that the use of hazard lights by Mr Long gave visual warnings to police. The same was also said about the use of the horn.
[33]See Statement of First Constable THURTELL at [10], Depositions p. 86.
94The protracted nature of this offending, the sheer size and capacity for damage by the vehicle, Mr Long being unlicenced and drug affected and the other matters I have set out above, make this a serious example of the offence. It was anything but transitory or short lived. He persistently ignored instructions to stop. He reversed at times towards police. Penalties for a number of discrete driving offences committed during this episode of driving will be subsumed in the sentence I impose principally on Charge 4.
95The damage emergency vehicle occurs as a prelude to the above offending. As counsel said at paragraph 9 of her submissions, Mr Long caused the damage when the back of the prime mover collided with the police vehicle as he was attempting to pass it on the nature strip.[34] In that sense, this offence falls into a different category to those cases that we typically see where an accused intentionally rams a police vehicle. To that extent I agree.
[34]Exhibit ML-1: Defence Outline of Plea Submissions dated 17 May 2022 at [9].
96In the successfully negotiated aftermath, police located items which are troubling including cannabis, a gel gun and ammunition. The quantity of cannabis located is consistent with his personal use. One can safely assume that the gel gun was the firearm he had already told police about during the Triple-0 call. No reason was proffered for its possession nor for the fact it was located in between the seats. It is troubling that he had it all.[35]
[35]His prohibited status relates to being the subject of an IVO.
97The explanation offered to Forensicare for the offending which was consistent with the interview is worth repeating here at [29] of the Forensicare report and following:
In the lead up to the relevant offences, Mr Long had not slept for over 48hrs. He did not feel tired, but rather energised and full of ideas. On 9 July 2021 he made the impulsive decision to take a holiday to Western Australia. To do this, he needed to get to from Cobram to Melbourne Airport. He thought the easiest way to do this would be to attend the local police station and ask one of the officers to drive him there. He was unsure of the time, but it was certainly night. Upon reaching the station, Mr Long was surprised to hear that it would not be possible for them to transport him to Melbourne.
After being declined by the police, Mr Long realised that he was near a trucking company where his father had worked. He thought that he may be able to get a lift from one of the truck drivers, and so let himself into the yard. The yard was deserted so he let himself into the office area to wait for staff to arrive. Whilst there, he filled out a job application despite not having a licence. He also recalled fragments of a story that someone from the company was fired because of damage caused to a vehicle. Mr Long thought he might be able to repair the damage and therefore save the person’s job. He found the keys to a truck with a plan to take it to a repair centre and drive it down to Melbourne. He was aware he didn’t have a licence but believed he had been given a ‘green light’ by police to drive unlicenced, because he had recently been issued a warning over a driving offence.[36]
[36]Exhibit ML-5: Forensicare Report of Dr David Batten dated 29 June 2022, p. 4, [29]–[30].
98Mr Long’s account of what happened next is consistent with those recorded in the Summary of Prosecution Opening. He felt that he was entitled to be driving to Melbourne and he had done nothing wrong. He became irate at police when they eventually forced him to stop the truck and detain him. He described being agitated for several days after he was arrested.
99Whilst giving his account, he was aware of the bizarre and irrational nature of his thought processes and decision making. He prefaced or added to many of the points with, ‘It sounds crazy now, but it’s what happened.’ Mr Long was vague about the events in the days prior to 9 July other than stating, ‘He hadn’t slept for two and a half days.’ He did note that he had not been compliant with his medication for about 12 months prior to that date.
100I don’t doubt that this is an honest account of Mr Long’s beliefs and motives for the above offending. Needless to say, the offending is really only explicable through this distorted perception of the world Mr Long had at the relevant time. I will turn to matters of sentencing principle.
MATTERS OF SENTENCING PRINCIPLE
Verdins[37]
[37]R v Verdins (2007) 62 VR 491 (‘Verdins’).
101It is convenient to deal with the entirety of the application of the Verdins principles and the evidence underpinning the same here.
102Much of this plea was originally framed around the report of psychologist Mr Warren Simmons.[38] For reasons concerning the accused’s cognition and the possibility of an acquired brain injury, the matter was adjourned so that the neuropsychologist report could be obtained. And so, the report of Dr Sinclair was provided.[39] The psychiatric report of Dr Batten was also provided.[40]
[38]Exhibit ML-2: Report of Warrren Simmons dated 22 April 2022. See also Exhibit ML-1: Defence Outline of Plea Submissions dated 17 May 2022 at [34]–[48].
[39]Exhibit ML-4: Report of Dr Kelly Sinclair dated 29 August 2022.
[40]Exhibit ML-5: Forensicare Report of Dr David Batten dated 29 June 2022.
103In combination, these reports provided me with real assistance.
104I will deal first with the report of Ms Sinclair,[41] where she opines there were real concerns about Mr Long and his cognition given a series of events involving potential injury to his head. After thorough testing and analysis, Ms Sinclair concluded that Mr Long’s cognition was intact. That is not to say that the exercise of commissioning the report was of no value. Quite the contrary. It was utterly necessary in my view to exclude a potential cause of the offending and it is informative when it comes other aspects of the case and when coming to an appropriate sentence.
[41]Exhibit ML-4: Report of Dr Kelly Sinclair dated 29 August 2022. VLA and the accused’s counsel and instructing solicitor ought to be congratulated for the diligence with which this material was sought. It is inconceivable the plea could proceed without it.
105I will now turn to Dr Batten’s opinion commencing at paragraph 44 and I will repeat it in full, as I simply cannot do justice by summarising it.
[44]Mr Long has an established diagnosis of Bipolar Affective Disorder. There does not appear to be much doubt about this, however the clinical picture may have been confounded somewhat by use of illicit substances. In addition to bipolar, it is quite likely that Mr Long has a number of personality disorder traits, specifically borderline and anti-social, however there is insufficient evidence to give an opinion whether there exists a co-morbid personality disorder. It is quite likely that Mr Long does have a social anxiety disorder, which is impacting significantly on his day-to-day function. He is receiving some treatment for this in prison but remains symptomatic and needs further treatment.
[45]Mr Long’s account of the events around 9 July 2021 and the collateral information regarding his history and presentation after, convince me that Mr Long was experiencing a manic episode of bipolar affective disorder type 1 at the time of the offending. Particular features of importance include his previous manic episodes, his self-cessation of mood stabilising medication, his lack of sleep preceding the events themselves, the bizarre nature of his thought processes and actions, and his high state of agitation on arrest which lingered for a time in prison. The picture is consistent with a manic episode according to the Diagnostic and Statistical Manual, 5th edition.
[46]Mr Long’s manic episode at the time of his offending did temporarily affect his mental functioning such that he had an impaired ability to understand his conduct was wrongful, and as such the moral culpability of his offending was affected. His manic episode meant he was acting on impulse and his ability to use his judgment was grossly impaired. He made a series of unreasonable decisions in the process of pursuing his fanciful hope to get to Western Australia.
[47]The impact of Mr Long’s manic episode on his offending suggests there is a reduced need for specific deterrence. After Mr Long recovered from his manic episode, he could see that his decision making during his offending was bizarre, irrational and due to his mental illness. He now shows a high degree of motivation to remain in control of his bipolar affective disorder type 1, through use of medication and mental health support, in order to prevent further offending.
[48]Mr Long’s bipolar affective disorder and his social anxiety disorder mean that a custodial sentence is more difficult for him. Early in his incarceration, he was still experiencing manic symptoms as he recovered from mania. Symptoms of mania including irritability and impulsivity can be distressing for people and make their experience of prison more difficult, especially during periods of lockdown (including that required during the first two weeks of protective quarantine). Despite Mr Long benefitting from psychology and case management in prison, the resources for these services in custody are far more limited than those available in the community. His social anxiety, social withdrawal, low mood and suicidal ideation means that he will be less likely to access the resources that prisoners ordinarily utilise to cope in prison.
[49]A thorough risk assessment was not possible to perform, however it appears Mr Long is at chronic risk of self-harm due to his persistent suicidal ideation, his previous suicide attempt and self-harm, his emotional dysregulation, and his reliance of substances to cope with life’s stressors. However, this risk is mitigated though good engagement with clinicians, self-regulatory techniques, and medication. He is insightful into the benefits of medication and his risk of non-compliance is low. He remains at risk of relapse into substance dependence however he has taken significant steps to demonstrate a commitment to remaining abstinent. There does not appear to be a significant risk of inter-personal violence.
[50]It is noted that prior to the events of 9 July 2021, Mr Long had not been admitted to hospital for approximately 10 years. Furthermore, he had not recorded any offences for the previous six years. If Mr Long is able to avoid another manic bipolar episode, his chances of re-offending are greatly reduced. The most important factor to prevent a manic relapse is adherence to medication. He should re-engage with his local GP Dr Spencer or local psychiatrist to discuss treatment options and for ongoing monitoring. Mr Long has stated his intention to remain on medication long-term and see Dr Spencer on release.
[51]It is possible that that the cumulative effect of Mr Long’s cannabis use, alcohol use and other substances, contributed to the manic episode of 9 July 2021. Mr Long identifies as previously dependent on cannabis. He believes he has been able to break that dependence whilst in prison and has completed the harm-reduction program Cannabis and Me. He states that relapse will not be an issue in the community due to his insight and motivation to remain abstinent. To that end, I would recommend that he participate in a drug and alcohol support service on release in the form of drug and alcohol counselling.
[52]Mr Long’s largest barrier to successful reintegration into the community will be his current social anxiety symptoms. He would benefit from assertive treatment, involving his GP, psychologist and possibly a psychiatrist if available under a GP Mental Health Care Plan. Linkage with the Local Area Mental Health Service (LAMHS) would also benefit Mr Long.[42]
[42]Forensicare Report of Dr David Batten dated 29 June 2022, pp. 7–8 [44]–[52].
106From this opinion, supplemented where necessary by information form the other reports, a number of sentencing considerations are activated, pursuant to the limbs in Verdins;
(a) Limb 1 – Reduction in moral culpability.
It is hard to completely disentangle the confounding nature of cannabis use, the cessation of psychiatric medication and the onset of mania.[43] A mania which apparently drives the present offending, especially when one looks at the way that the mania manifests at paragraph 46 of Dr Batten’s Report, quoted above. Mr Long’s moral culpability is modestly reduced. He has laboured under severe mental health difficulties, particularly bipolar disorder for more than half of his life. There is no evidence he was necessarily on notice if he used cannabis or ceased medication, he would have a manic episode like this. Ms Kelly indicated it would be a modest reduction of sentence for that reason. Mr Teo accepted this was so, I agree.
(b) Limb 3 – General deterrence.
I am prepared to also allow a modest reduction in the weight that would otherwise be given to general deterrence. Mr Long is hardly representative of other members of our community. The nature and severity of his condition, the symptoms and the way they manifested at the time of the offending make him not necessarily an ideal candidate for general deterrence. An allowance will be made for this.
(c) Limb 4 – Specific deterrence.
In accordance with Dr Batten’s comments, I am similarly inclined to reduce the weight to be given to specific deterrence. Obviously, the need for the same is not eliminated, but rather sensibly moderated.
(d) Limb 5 – The existence of an impairment at the time of sentencing, or its reasonably foreseeable reoccurrence, may mean that a specific sentence may weigh more heavily on the offender than it would on a person in normal health.
Pursuant to Dr Batten’s finding at paragraph 48 of his report, this is the case. Mr Long’s time thus far in prison has been nothing but arduous. This has been supported by the evidence in the report of Dr Sinclair at pages 5 and 8, where the accused is barely sleeping, barely eating and reluctant to even leave his cell even for medication.
(e) Limb 6 – If there is a serious risk that imprisonment will significantly adversely impact on the offender’s mental health, this will be mitigating.
This question is somewhat difficult. On the one hand, his mental health has stabilised since he is now medicated. On the other, he continues to be symptomatic of serious social anxiety and requires further treatment. The prison is not resourced to meet his needs fully as his anxiety, mood and suicidality means he is less likely to access the services he needs. Seen that way, one cannot conclude that his symptoms will improve but rather will worsen in custody. An allowance will be made in his favour on this basis.
[43]He now seems to realise the connectedness of these issues – see Exhibit ML-4: Report of Dr Kelly Sinclair dated 29 August 2022, p.16; Exhibits ML-5: Forensicare Report of Dr David Batten dated 29 June 2022 at [22] and [38].
107These allowances, when viewed in their totality, obviously combine to temper the sentence I would have imposed but for the existence of these personal features to Mr Long.
Plea of guilty
108The guilty plea in this matter was offered at an early time. By resolving this matter, he spared the community and other witnesses the inconvenience and cost of a trial. This is no small matter. He has acknowledged his wrongdoing and demonstrated a willingness to facilitate the course of justice.
109The plea was entered at a time when Covid-19 was prevalent in the community.[44]
[44]It still is.
110Accordingly, the plea is of real utilitarian value to the Court, especially in the context of the COVID-19 pandemic, as observed by our Court of Appeal in Worboyes v The Queen.[45]
[45][2021] VSCA 169, [39]. See also DPP v Bourke [2020] VSC 130 at [32]; Chenhall v The Queen [2021] VSCA 175, at [34]–[35].
111The plea in my view warrants significant moderation of the sentence to be imposed. The plea is also accompanied by remorse. He expressed remorse and regret to Dr Sinclair and apologised in part for his behaviour when he was interviewed by police once fit to be interviewed.
Burden of imprisonment in the pandemic
112By March 2020, corrections took steps to protect the prison system from outbreaks of the disease. These protective measures negatively impacted detainees and increased the burden of imprisonment. The pandemic is far from over. Unless and until it is otherwise demonstrated to me, I will sentence on the basis that the same hardship will be occasioned to any prisoner as that which has been experienced in the previous two years.
113Mr Long has served a total of 452 days or approximately 14 months pre-sentence detention. Which is approaching the longest period of imprisonment he had ever encountered, certainly for the last 20 years.
114I accept that there has not been a more difficult time to be a prisoner or remanded in this state than there is now. But for this prisoner particularly, the burden is one that has been acutely felt. He has not just endured his time on remand in the circumstances of poor mental health that I have outlined above. But he has been especially isolated, reduced to communicating with his family only in writing. And during his time of remand his grandmother had passed away and he was unable to attend her funeral.
115I accept that these are the conditions and circumstances that you have been confined in, Mr Long, and will continue to be confined in. The sentence I impose will reflect this additional burden of imprisonment in the circumstances I have just described. It won’t result in your immediate release, and in fairness Ms Kelly did not invite me to immediately release you. But it will reduce the sentence I would otherwise impose.
Punishment, deterrence and denunciation
116These are all matters of significance in the formulation of an appropriate sentence. These principles are relevant in that the sentence must convey to others that the offending of this nature will not be tolerated by the community.
117He must be justly punished for the criminal conduct in which he engaged. In all the circumstances, that punishment still needs to be substantial though a large measure of that has already occurred, which I have already noted when dealing with the burden of imprisonment at present, especially for this accused.
Specific deterrence
118His recent and relevant history means that specific deterrence still plays a role in the sentence I impose. His prior convictions and longstanding drug addiction count against him here. I bear in mind though the comments of Dr Batten.
Community protection
119The community can sometimes only be properly protected from an individual by that person’s lengthy confinement in custody. In other circumstances, the community is best protected through reform and reintegration of reoffenders back into their midst. This is a self-evidently dangerous episode of offending, and not this accused’s first such episode. I am of the view a mix of both confinement and release on licence is required and I approach this aspect of the sentence with real caution.
Rehabilitation
120I am forced to conclude that his prospects are guarded at best, Ms Kelly acknowledged as much. I am heartened though, by the degree of insight that Mr Long presently possesses, and his amenability to treatment. He already has in mind treatment and medical supervision after release. I am encouraged by the way that he is supported by his family and can return to them in the Goulburn Valley once released.
Offence gravity
121I have noted elsewhere my view on the gravity of the offending. For completeness, I had regard to the maximum penalties applicable. I have not been provided with any cases that are said to be comparable to this one. I would be surprised if there were cases truly answering the description of similar, given the rather unique set of facts I am presented with here.
Totality
122I am mindful of the significance in this case of the application of the totality which requires a court in sentencing an offender for multiple offences, to ensure that the aggregate term is one that is just and an appropriate measure of the total criminality involved. There must be appropriate relativity between the totality of all criminality and the totality of the total effective sentences.
123To comply with this I have done the following:
(a) I have determined an appropriate length of imprisonment for each charge, taking into account the applicable sentencing considerations and designated the highest term as the base;
(b) I have determined the extent to which there should be cumulation regarding each count; and
(c) I have then stood back and considered, in light of totality, what an appropriate sentence is.
124The charges the subject of the indictment were committed on bail for other offences. While some of those charges are of a similar nature in some ways, albeit of a different magnitude to the present, nonetheless the fact that this accused committed those matters on bail is relevant. Though, I must be careful to avoid double punishment.
125The offence of committing an offence on bail essentially involves Mr Long being prepared to willingly defy a court order granting him conditional liberty on the basis he would not commit any further offences. In the context of this offence, I will not punish him twice, or additionally, for the conduct the subject of the indictment. In all the circumstances, I consider a short standalone sentence wholly concurrent to be the appropriate means by which I sentence him for the summary charge of breach of bail.[46]
[46]I consider that in all the circumstances the statutory presumption that offences committed whilst on bail be served cumulatively is displaced.
126Further, there is another statutory presumption of total cumulation when considering Charge 3, pursuant to s.161A(k) of the Sentencing Act 1991. I consider the presumption for total cumulation to be rebutted here.
127These offences occur within the same episode and represent different facets of criminality, from dishonesty to exposing others to danger and harm. There will be substantial but not total concurrency on the sentences imposed on those counts.
128I will turn now to the formulation of sentence.
FORMULATION OF SENTENCE
129In formulating an appropriate sentence, I have had regard to the only purposes for which a sentence must be imposed. There is an importance of general deterrence and protection of the community in relation to offences of this kind which I have already alluded to.
130As I said, I am satisfied in the circumstances of this case, that the need for specific deterrence and community protection, is still very present. There is also a need for any sentence to facilitate Mr Long’s rehabilitation as appropriate. Ultimately, this serious offending must be denounced on behalf of the community, and he must be justly punished.
131Finally, in fixing an appropriate sentence and allowing for a parole eligibility component, I have had regard to the principle of parsimony. That is, the requirement not to impose a sentence that is more severe than that which is necessary to achieve the purposes for which the sentence is imposed.
132The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation, through conditional release when appropriate. A non-parole period is the minimum time that I determine justice requires the accused to serve, having regard to all of the circumstances.
133Due to the constellation of mitigatory factors in this case, I have concluded that it is appropriate to allow for a meaningful parole period in this sentence. Accordingly, the non-parole period, that is the period of imprisonment to be served before which Mr Long becomes eligible for parole, will take into account the mitigatory factors in this case and facilitate his reintegration into the community and ultimately, it is hoped, his rehabilitation.
134After careful consideration of all matters placed before me, Mr Long is sentenced as follows;
| Indictment | ||||||
| No | Charge | Maximum Penalty | Sentence | Cumulation *on base and each other | ||
| 1 | Burglary | 12 months’ imprisonment [Crimes Act 1958 s.76] | 12m | 4m | ||
| 2 | Theft | 16 months’ imprisonment [Crimes Act 1958 s.74(1)] | 16m | 6m | ||
| 3 | Damage Emergency Service Vehicle | 12 months’ imprisonment [Crimes Act 1958 s.317AG(1)] | 12m | 5m | ||
| 4 | Dangerous or Negligent Driving While Pursued by Police | 20 months’ imprisonment [Crimes Act 1958 s.319AA(1)] | 20m | 20m – Base | ||
| 5 | Prohibited Person Possess Imitation Firearm | 4 months’ imprisonment [Control of Weapons Act 1990 s.5AB(2)] | 4m | 1m | ||
| 6 | Possession of a Drug of Dependence | $200 fine [Drugs, Poisons and Controlled Substances Act 1981 s.73(1)] | $200 fine | |||
| Related summary offences | ||||||
| 16 | Use Mobile Phone Whilst Driving | [Road Safety Road Rules 2017 r.300(1)] | Convicted and discharged | |||
| 17 | Commit Indictable Offence Whilst on Bail | 1 month imprisonment [Bail Act 1977 s.30B] | 1m | Nil | ||
| 25 | Drive Whilst Exceeding Prescribed Concentration of Drug | $500 [Road Safety Act 1986 s.49(1)(bb)] | $500 fine | |||
| TES | 36 months | |||||
| NPP | 24 months | |||||
135The 20 months on Charge 4 is the base sentence. I am about to articulate the degrees of cumulation on that base and on each other. I cumulate;
4 months on Charge 1,
6 months on Charge 2,
5 months on Charge 3, and
1 month on Charge 5.
136That ought to bring about a total effective sentence of 36 months’ imprisonment or 3 years.
Pre-sentence detention
137I set a non-parole period of 24 months or 2 years pursuant to s.18 of the Sentencing Act. I declare that Mr Long has served a period of 452 days pre‑sentence detention, not including today’s date, in respect of the sentence I have imposed. I further order the declaration and its details be entered in the records of the court.
Section 6AAA application
138Pursuant to s.6AAA of the Sentencing Act 1991, I give the following indication, but for his plea of guilty to these charges, I would have sentenced him to a period of 4 years 6 months and set a non-parole period of 3 years 3 months.
Ancillary matters
139By way of ancillary matters, I make disposal orders and the forfeiture orders in the terms sought. I turn now to licence cancellation and disqualification. With respect to this I have noted that there are a wide variety of mandatory orders that are required to be made on his licence,[47] as well as a general discretion under s.89A of the Road Safety Act to do same when it comes to Crimes Act1958 offences only.
[47]Charge 2: Theft of motor vehicle:s.89(4) Sentencing Act1991 – mandatory cancellation and disqualification for a period the court specifies (3 months if the court does not specify a period).
140Considering his lengthy driving history, previous periods of disqualification and the entirety of the offending in this case, I am satisfied a substantial period of disqualification is appropriate.
141I order that on Charges 2 and 4, and related summary offence 25, his license be cancelled and disqualified and he is prohibited from obtaining another one for 12 months from today.
142On Charge 3, his license is cancelled and he is disqualified from driving for a period of 36 months from today.
143In making those orders I am mindful that such an order will continue until after the accused completes his parole if it is granted. I consider the punitive nature of such an order and the necessary protective aspect of that order necessary to prevent this particular accused from driving.
144HIS HONOUR: Do the orders for cumulation make up the sentence that I intended to impose?
145MR TEO: Yes, Your Honour, 36 months.
146HIS HONOUR: Is there anything that either of you need to raise?
147MR TEO: No, Your Honour. I just wanted to clarify in relation to the license disqualification, was Charges 2, 4 and 25 that received 12 months, Charge 3 - - -
148HIS HONOUR: Just let me check again, 2, 4 and 25 they're all mandatory 12 months.
149MR TEO: Yes.
150HIS HONOUR: Charge 3 as per correspondence to my chambers is the Crimes Act offence that I was invited to exercise the discretion under s.89A under and I’ve done that for a period of 36 months from now.
151MR TEO: Thank you, Your Honour.
152HIS HONOUR: Unless there any other matters, I adjourn the court.
Charge 4: Dangerous/negligent driving while pursued by police: s.89(3) Sentencing Act1991 – mandatory cancellation and disqualification for a period of not less than 12 months.
Summary Charge 25: Drug driving: s.50(1E) Road Safety Act1986 – mandatory cancellation and disqualification for a period of not less than 6 months for first offence or 12 months for subsequent offence. You have a prior matter for exceeding the prescribed concentration of alcohol which was dealt with on 22 August 2014 at the Shepparton Magistrates’ Court. Pursuant to s.48(2) of the Road Safety Act1986, this new drug driving offence is therefore taken to be a ‘subsequent offence’, so the period must be not less than 12 months.
Other charges: The Court has a general discretion pursuant to s.89A Sentencing Act 1991 to interfere with the accused’s licence in relation to any offence, other than offences under the Road Safety Act 1986 or regulations made under that Act. It was submitted by Mr Teo that it may be appropriate to exercise that discretion in relation to Charge 3: Damaging an emergency service vehicle, but not in relation to the other charges on the indictment. As indicated above, the discretion does not apply to the transferred summary offences, all of which are offences against the Road Safety Act1986.
Section 89C of the Sentencing Act1991: Upon making licence orders in relation to charges 2 and 4 under s.89(3) and (4) of the Sentencing Act1991, the court may make a finding that the offences were committed while the offender was under the influence of alcohol or a drug, or both alcohol and a drug, which contributed to the offence. Whilst the accused was under the influence of drugs and is to be dealt with in relation to a charge of drug driving, the prosecution does not invite the Court to make a finding under this section, as it is not established that the influence of drugs contributed to the offence.
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