Director of Public Prosecutions v Martinez
[2018] VCC 976
•27 June 2018
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| IN THE COUNTY COURT OF VICTORIA | Revised Not restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No CR-17-01925
Indictment No H10051585.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW MARTINEZ |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2018 | |
DATE OF SENTENCE: | 27 June 2018 | |
CASE MAY BE CITED AS: | DPP v Martinez | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 976 | |
REASONS FOR SENTENCE
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Catchwords: Theft of car; arson of that vehicle; conduct endangering life; ramming of police van involved in interception of prisoner; criminal damage; 2 summary offences. 37 year old; lengthy criminal history.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Porceddu | Office of Public Prosecutions |
| For the Accused | Mr C. Thomson | Dowsley & Associates |
HIS HONOUR:
Andrew Martinez, on 23 April of this year, you pleaded guilty to 4 charges laid on the plea indictment which had been filed over on that date. So a plea of guilty to one charge of theft of a car, one charge of arson of that car, one charge of conduct endangering life, and one charge of criminal damage to the police divisional van. You also pleaded guilty to 2 summary matters being a charge of unlicensed driving and one charge of driving an unregistered motor vehicle. You have admitted a lengthy and relevant criminal history. You were born on 29 July 1980, you are almost 38 years old and you have been committing offences for about 20 years. The matter was adjourned from 23 April to last Tuesday 19 June to enable the preparation of a psychological report. The plea was conducted last Tuesday, being 19 June of this year.
The maximum penalties are correctly set out in the agreed prosecution summary and I see no need to repeat them. There was an error in the description of one of the summary offences. You have pleaded guilty to unlicensed driving not drive whilst disqualified.
Facts
The prosecutor Mr Porceddu opened this matter to me in accordance with the agreed written prosecution opening dated 23 May 2018. It was a very detailed statement and was read in its entirety on the plea in open court. That summary is admitted so I see no need to describe the full factual setting in my reasons. After all, that agreed statement will remain on the Court file and I will not stray beyond the agreed facts.
I will still say something, quite briefly, about this offending. In a between dates period in December, the charge, particularised as falling between 14 to 16 December 2016, you stole a car which had broken down with a flat tyre and had been parked on the side of the road by the owner. You took it away on your flat tray tow truck. You dismantled it for parts. So much then for Charge 1 theft of the car belonging to Mr Omar Mohamed. In the early hours of Friday 16 December 2016 you were dumping the stripped shell of that stolen car in a paddock out in Melton South. You dumped it in the vacant paddock, you doused it in petrol and you then set it alight, hence the charge of arson, the subject of Charge 2. So far, obviously serious enough offending. It was a 2010 vehicle of some value. You had stolen, you had stripped, and you had destroyed it. Regrettably you then took the offending to a totally different level. Two police members who were performing divisional van duties saw your truck exiting the paddock. They then saw the burning shell of the vehicle and understandably then tried to intercept you. It was just past
2 am. You accelerated away and continued driving. You turned to your passenger a woman named Crystal Perry and said “babe I’m fucked if they pull me over, I’m fucked, I have to fucking ram them”. You no doubt felt that you would be going back to prison for the theft and arson, a fair enough assumption given your very long criminal history and the seriousness of the crimes you were to that point implicated in, if you were caught. However you obviously should have surrendered. As a result of the conduct that then took place you will now receive a sentence which will greatly overshadow the sentence you otherwise would have received. You pulled over to the side of the road feigning to stop for the police van which was displaying flashing lights. The divisional van pulled in behind your vehicle. However, before the members had a chance to get out you reversed your truck at a fast rate of speed and rammed the front of the van. It was a highly dangerous manoeuvre and anything could have happened. Luckily the underside of the flat tray became wedged on the top of the bonnet impeding the point of the flat tray from penetrating the windscreen. You then drove forward with the van connected to your tray and in doing so you dislodged the van. You then reversed and rammed the police van a second time.
The first ramming of the police van carried the van about 10 metres backwards, such was the velocity and the weight of your vehicle. Quite simply, in those moments before the first ramming, both members thought they were going to be decapitated and who could blame them for thinking that witnessing as they did the tray of your vehicle accelerating at around head height towards their van. Luckily for you they did not sustain physical injury or worse.
You had disabled the police van. Exhibit C shows the damage. You then drove from the scene, you dumped the truck and ran away on foot through some paddocks. A few days later you returned to the abandoned truck and you then drove it to your friend Ms Perry’s brother’s house in Delahey where it was stored without the registration plates. Police found the truck there in late December 2016 and you were arrested on 5 January 2017. You lied to the police when you were interviewed asserting that you had had not driven the vehicle for at least 6 months. The case against you was an overwhelming one as the summary makes plain.
You ran a contested committal. You were committed to stand trial in this Court. The trial was listed on 16 April 2018. It was not reached in the reserve list. I took the matter out of the reserve list on 18 April 2018 for the trial to start the following day, before me. There was legal argument on 19 April. You were challenging numerous pieces of evidence, as was your right, including your admitted lies in the police interview that you had not driven the truck for over 6 months. There was a powerful body of material demonstrating that lie including of course CCTV footage at a variety of locations showing you in that very truck on the day before the major incident that I am dealing with. In fact the lie was admitted to be a lie. Your counsel made that plain enough but its admissibility in the trial against you was not accepted.
In any event, objection was taken to the admission into evidence of your admitted lies, to the evidence of your flight upon apprehension and to the evidence of the storage of the truck. Also to the claimed unavailability of two witnesses and the admissibility of some texts both sent and received by you. I ruled on those matters on Friday 20 April. Amongst the rulings that I delivered, I excluded the evidence of flight and the texts but not the lies and your counsel, Mr Thomson, then asked for some time. The case was adjourned to the following Monday. I came back onto the bench on Monday 23 April and was told that the matter had settled. The only difference between the trial indictment and the plea indictment was that the two police members whose lives were endangered were now placed into a single charge of conduct endangering life. The issue in dispute at trial had always been your identity as the driver of the truck and the thief of the car taken from the side of the road. Those things were denied right to the end.
So much then for my brief summary. Of course the full summary sets out far greater detail. This was extremely serious criminal conduct, make no mistake about that. You took deliberate action against serving members of the police force to try to avoid arrest. That action placed them at risk of death.
Impact
There are two victim impact statements here. Senior Constable Toll’s statement was read aloud. Senior Constable Densley’s statement was filed but not read. I have read both statements since. No issue was taken with the victim impact material though I made plain that I would not act on two portions of Senior Constable Densley’s impact statement where he described his belief that you were trying to kill him (see page 3) and where he provided submissions as to sentence in the final paragraph of his impact statement. I will have no regard to those matters though I am not critical of him for holding that belief or expressing his views. It is perfectly understandable.
Though not physically injured this was a very frightening incident for these two police members. The police members who had the misfortune to observe the dumping of the vehicle and who were just carrying out their duties were then plunged into something they never could have imagined. It was a shocking event and though not physically injured, the impact has been very extensive. They thought they were going to die. Senior Constable Densley describes the lights of the truck coming at a fast rate of speed straight towards their heads. Senior Constable Toll describes her changed attitude after the event. She became withdrawn and was diagnosed with PTSD. She found work hard and was anxious on duty. Your conduct has changed her attitude to her job and she does not know what the future holds for her in that regard. This was an intercept manoeuvre that all police engage in and Senior Constable Densley has found it difficult going about his daily duties. He has replayed the event in his mind. It has impacted on his decision making in a negative way. He has felt anger, anger at you. Anger that has spilled over even at home. He has trouble sleeping, he now uses sleeping pills and he has flashbacks and nightmares and has had some counselling. He was passionate about his job but he too has questioned if he even wants to remain in the job he previously loved. You have caused all these impacts Mr Martinez. No one else. You. I take into account as I am required to the sizeable past and ongoing impact of your crimes.
Mitigation
Your counsel Mr Thomson raised a number of matters in mitigation chiefly relying upon:
· The fact of your guilty plea;
· He placed before me details as to your background and relied upon a report from a psychologist Ms Ferrari; and he submitted that one principle (the 5th ) from the case of Verdins, that you heard discussed, had some modest application here;
· He submitted that you had some prospects of rehabilitation;
· He took me to two other cases and suggested that the conduct endangering life in your case was less serious than those others;
· Though not a major matter, when I asked him specifically he suggested that I should find the presence of at least some remorse;
· Mr Thomson conceded the seriousness of the offending and the inevitability of a sizeable prison term and one requiring the fixing of a non-parole period.
Prosecution
Mr Porceddu who appeared on behalf of the Director, made submissions as to the seriousness of the offending, particularly the conduct endangering life. The prosecutor submitted that you had, on the materials, low prospects of rehabilitation given the criminal record you had accumulated. He suggested that there was little if any evidence of any remorse. As to the conduct endangering life, it was, he said, a significant matter in aggravation that these were two serving members of the police force engaged in lawfully intercepting you. He raised a query about the application of the 5th limb of Verdins and challenged the contention that this instance of conduct endangering life was less serious than those referred to in those two other cases.
Background
I turn now to your background. I have no reason not to accept the family background that has been placed before me on the plea so I am not going to set it all out. Your background is referred to in quite some detail in the report from Ms Ferrari. It was obviously a disadvantaged early childhood and adolescence with much instability, violence and dysfunction and I do take it into account as far as I am able to. You were born 29 July 1980. You are now almost 38 years of age. You were one of three boys and owing to the violence at home, there were many separations. You both witnessed and for that matter experienced violence. You left home at the age of 16 owing to the situation there. You left school at the end of Year 11 and pursued an apprenticeship. You have spent most of you working life in the mechanical and towing game. You had long term issues with cannabis and headed off into ice following the breakdown of a long-term relationship in 2016. I was told that that was the lead in to this offending. That is separation from your long term partner Nikki and falling into the use of ice. Regrettably you have a lengthy criminal record that spans offending over almost
20 years. It is highly relevant to my task. You have been sentenced in the past for a large array of dishonesty offences and you have received virtually every disposition under the sun. There have been over 15 prior convictions for car theft. You have breached very many court orders. You have been sent to prison on many occasions. There is also a lengthy enough driving history. You have in the past been sent to prison for dangerous driving causing the death of another human and failing to assist at that accident. Your mother died as you served that sentence and I was told that you had never come to terms with her death or your inability to attend the funeral owing to your being in prison. The sentencing remarks of Judge Lewitan are before me and marked as exhibit D. In that case you had stolen a car, you had driven it through a give way sign and struck and killed a motorcyclist. This was in 2005. I was told that a few years before that in the year 2000 you had actually witnessed your younger brother crash a stolen motorbike and he died in your arms as you had been travelling behind him. It is quite incredible that someone with those awful experiences on the road could then engage in the deliberate driving of a large truck back into an occupied police van. But that is what you did. The need for specific deterrence in this case is very plain indeed. You are no teenager. You are a seasoned and mature offender with a lengthy and highly relevant criminal record. I will try again to deter you and to protect the community from you.
Guilty plea
I turn then to consider some of the submissions made on your behalf.
Firstly, of course, I have your guilty plea. You have pleaded guilty. It was obviously a very late plea with endeavours to avoid liability for your conduct pretty much right up until the plea was entered. The two police victims had been called in a committal and challenge was even taken to the ‘unavailability’ of Senior Constable Toll even though she was virtually at full term in her pregnancy at the start of the trial and had not even identified the driver. As late as the plea was there is still a utilitarian value which must be recognised. Witnesses have been spared the experience of at least giving evidence in this Court. The community has been saved the time, the expense and effort associated with the full conduct of a trial in this Court. The trial was estimated to run about 7 days. Of course I ignore the period when the matter was not reached in the reserve list. We then used a couple of days of the 7 day estimate in the pre-trial matters and in the ruling and then the request made by your counsel to stand the matter down. So there has still obviously been a saving of time and expense here. It is obvious though that the utilitarian benefits are not as great as they sometimes are. You have still facilitated the course of justice. You have at least and at last taken responsibility and I must reward you for your decision to plead guilty. Plainly though it is not deserving of the level of discount to be given to a plea at the earliest opportunity which this most certainly is not. I must still pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury at trial
Remorse
I turn then to the issue of remorse. Your counsel, Mr Thomson, had made no direct submission on this topic at all and when I took him to the topic, he made clear that it was not his strongest point. Still he argued that I should find that there was at least some remorse here. Given the chronology set out above in my reasons it is extremely difficult to find any remorse at all. You have pleaded guilty and a guilty plea is usually though not always indicative of some remorse. Here, the case was an overwhelmingly strong one so your guilty plea is not necessarily indicative of remorse. You have always known what you have done. You were the driver. You knew that and always have. You sought to evade liability right up until the day that you did not and that day was on the day that a jury was actually to be empanelled to try this case. That decision to plead guilty was taken only after a ruling as to the admissibility of your lies was delivered by this Court. You denied any liability and connection to the truck in the relevant time frame when interviewed by the police. You ran a committal. Witnesses including the two victims were cross examined. This of course was your right. A defence response was filed in this Court where you denied presence in the truck on the night. Plainly it is not an aggravating feature that you have availed yourself of your right to conduct a committal or bring the matter to trial and then to challenge the admissibility of evidence. The question for me though is whether I can find the presence of any remorse here given the chronology that I have set out. I have the report of Ms Ferrari but that report seemingly confuses the concept of remorse with feelings for your family and partner. I am glad you have those feelings, it is understandable that you do, of course it is, but that is not remorse. Ms Ferrari speaks of genuine remorse but does not set out what that means to her or what she actually observed. There is one reference to your insight into the impact upon the victims but virtually every other reference is to your concern for your own family or your partner. There is nothing much at all in that report suggesting genuine remorse for the commission of these crimes, and by that I mean either for the plight of the owner of the stolen car or the plight of the police victims. There is however much in the chronology that suggests otherwise including a guilty plea at pretty much the last opportunity. I am actually not satisfied on the balance of probabilities that you are genuinely remorseful for these crimes.
Prospects
I turn now then to your prospects of rehabilitation. What are your prospects of rehabilitation? You are almost 38 with a lengthy criminal record. You have breached very many court orders. You have been sent to prison on many occasions. Yet still you offend. Dishonesty offending has been very common including many instances of car theft but there are also other serious offences in your past including the dangerous driving causing death and failing to stop that I mentioned earlier. How anyone with that past record could choose to engage in the act the subject of the conduct endangering life is disturbing. Your counsel speaks of the existence of family support, of visits from your partner and young son. Of your desire and commitment to change your life, of the courses and treatment and clean urine screens that you have achieved in custody. Of the fact that you have spent over 530 days in custody. That you are of an age where your life really can go in one of two directions. Mr Thomson speaks of the absence of any intractable personality disorder or mental health issues which would impede rehabilitation. Of the fact that there has been some stability in your life in some phases, particularly for instance from 2013 to 2016. Well some if not many of these things could have been said at other times when you have appeared at court over the last 20 years. I note, for instance, Judge Lewitan’s sentencing remarks in September 2007 responding to your then counsel’s submissions as to your having begun to mature and the hope for rehabilitation and the prospect of becoming a worthwhile member of the community. I am not being critical of Her Honour accepting those points. She did. Her Honour accepted that there were some grounds for optimism. That was 11 years ago. (See paragraph 27 of those reasons.) Well here we are eleven years later and since then, there have been many appearances before the Courts and many breaches of Court orders. I am not going to write you off totally. I hope you can change in the future for your own sake and for the sake of your family but I am not encouraged by past events. There really is no sensible basis for me to have any great optimism at this point. I hope I am wrong but currently I judge your prospects of rehabilitation to be poor. I do not accept the suggestion in Ms Ferrari's report that you have a moderate risk of re-offence. I judge it to be a higher risk and base that on the realities before me, the reality of your position. Someone who is mature and who seemingly will not be deterred and who has chosen to commit offences over close to 20 years. I will not say you have no prospects at all but they are poor in my view.
Ms Ferrari
I have taken into account the report of Ms Ferrari. I take into account the report generally and in a manner consistent with the way Mr Thomson suggests I should. One of the major uses was in setting out your background and the disadvantages that remain with you from such deprivation at an early age. As I have already said I take into account your background as far as I am able to. He pointed to the absence of intractable personality disorders or serious mental illnesses. So the absence of those sorts of features which had they existed might act to impede your rehabilitation. In a way that was a two edged sword. True your prospects are not impeded by those sorts of things but that has been the case for years and yet you have offended. Nor are there those sorts of excuses or explanations to be found in your personality or mental health underpinning this serious offending. Things that may reduce your culpability. That is not the setting here. Mr Thomson took me to the comments in that report as to remorse. I have already dealt with those matters. He also submitted that the 5th limb of the case of Verdins had some modest application here. That is an increased custodial burden owing to the various conditions spoken of by Ms Ferrari, that is symptoms of depression and anxiety and untreated post-traumatic stress disorder and possibly Attention Deficit Hyperactivity Disorder. Mr Ferrari suggests that one with these conditions is more likely to find a custodial sentence more detrimental. She does not say why or how and really they are the sorts of things she needs to address in a report such as this. There is an air of advocacy in her report I am bound to say. She suggests at paragraph 97 for instance that your mental health should be a paramount concern in your sentencing. She is quite wrong in that regard. Your rehabilitation is not a paramount consideration at all. It is but one of the matters I am required to take into account and other sentencing purposes must be given more prominence for reasons that are obvious here. I am prepared to give the 5th limb of Verdins only very limited weight here. It is not a matter of any great consequence in my view and the factual basis for my acting in this way and taking it into account at all is pretty unsatisfactory.
The Offences
As to the offences themselves, your counsel conceded that this was serious offending. That concession was undoubtedly correct. You had no right to even be behind the wheel of any vehicle. You were driving a large tray truck. You used your tray truck to steal a car which had broken down with a flat tyre and been left on the side of the road, you stripped that car and then torched it. The conduct endangering was in my view an extremely serious example of the offence given the size of your vehicle, your familiarity with the vehicle you were driving and the reasons behind your deliberate act in reversing the tray truck at velocity into an occupied marked police van with flashing lights. There is nothing in the matters raised by Ms Ferrari which suggest you were in any way impeded in your understanding of the seriousness of that act. It was driven in this way owing to your desire to escape your own liability for the less serious crimes of theft and arson. Whilst it is true that prior to apprehension you had not pre-planned the conduct the subject of charge 3, you then engaged in the offence with no great concern for the police members and only the concern to save your own skin. It could have had devastating consequences leading you to occupy the dock in the
Supreme Court. It was in the lap of the gods frankly acting in the way that you did. You admit by your plea acting recklessly. You foresaw that an appreciable risk of death, that that was a probable consequence of your act. Luckily, though their lives were endangered, they escaped at least physical injury though have been deeply scarred by your crime. The reality is you had two options. Climbing down from cabin and handing yourself in was option 1, a pretty obvious one, or climbing down and running from the scene was I suppose option 2. The option you chose in using a large tray truck to ram at speed the front of a police van was an unthinkable third option and yet that is what you engaged in. It was quite incredible conduct. Many instances of this offence will relate to very poorly executed driving whilst under the influence of drugs or alcohol. Yours was deliberate conduct to save your own skin and it jeopardised the lives of others. There were two others included in that charge. Each a serving member of the police force and one who must be protected by the Courts. You knew they were police.
Your counsel argues as to the unplanned and spontaneous nature of the conduct endangering life. Sometimes, conduct endangering life or conduct for that matter endangering serious injury offences, they will be spontaneous in that there is an attempted police interception followed by a pursuit. Risks being taken which I am sure are very hard to process and quantify by the fleeing, panic stricken driver. Or whether in a pursuit situation or not, very substandard driving but by someone profoundly affected by drugs or alcohol. Here though, you were deliberately ramming an occupied marked police divisional van which had lawfully intercepted you. This was not the gamble of running a red light where there may or may not be traffic approaching and there may or may not be possible contact. You put your truck into reverse and deliberately rammed the police van, a much smaller vehicle. Though I have hardly mentioned them in great detail, whilst it is obvious that the theft of the car and the arson are serious offences and so too the criminal damage to the van (Charge 4), I regard Charge 3, the conduct endangering life as the most serious offence by far. In my assessment it is an extremely serious example of such an offence.
Purposes
I have to consider a number of purposes of sentencing. I must consider your rehabilitation and I do. As I have said, I think you have poor prospects of rehabilitation. I am also required to punish you but I must do that only justly and proportionately.
Punishment is a very significant sentencing purpose here. I must also denounce your conduct and I do. That is an important consideration as well.
There are other purposes of sentencing and one such purpose is the need for this Court to seek to deter you from offending in the future. I must try to deter you from future offending. Courts have tried over the years, many years, with very limited success indeed. I will try again. I must give that principle of specific deterrence significant weight in my sentencing task.
I must also give real weight to community protection. That too is obviously an important purpose here.
General deterrence is a very important purpose of sentencing in this sort of case. This Court must send a loud and a clear message to other individuals in the community who might be minded to commit this sort of serious offending. In terms of the conduct endangering life, there is a particular aspect that must be strongly reinforced. Such conduct as yours is totally unacceptable. Driving a vehicle and in doing so exposing serving police to the risk of death has to be strongly denounced and deterred. There will be no tolerance by the Courts of such conduct and it will be met with stern punishment. It must be. That is the message that must be conveyed loud and clear to members of the public who might be minded to offend in the manner that you did. Police have a sworn duty, to act to uphold the law. These police were on duty on the night in question and they were acting lawfully in trying to intercept you and in doing so their lives were placed in danger by your conduct. The Courts must make plain that those whose job it is to enforce the law will be protected.
I must and do pay regard to current sentencing practices. Every case and every offender is different. I have looked at the Sacstat data held by the Sentencing advisory council for the offence of conduct endangering. I have looked at the cases of Rivette and also Sadiq to which I was referred. Submissions were made as to the seriousness of your conduct relative to the conduct in those other cases. Other cases are not sentencing precedents. It is always difficult comparing cases. What I have got to do is pass an appropriate sentence in your case.
Those cases disclose other instances of other courts sentencing other offenders for other such crimes. Factually different crimes committed by offenders with different motivations and personal circumstances and matters raised in mitigation. Mr Thomson was taking some comfort from the fact that the conduct in this case is not as sustained a course of driving as discussed in those other cases. There is no comfort at all to be had from that fact. In Rivette there was a sustained and dreadful piece of driving, no question about that. However it was prompted by the vehicle owner unexpectedly throwing himself aboard the bonnet of the car that was then being stolen. It was an early plea with remorse and moderation of general and specific deterrence. In Sadiq there was drug affected terrible driving, no question about that, but there was also an early guilty plea, co-operation and remorse.
Here though, in this case, we have the two victims joined in the one charge. They were as you know now and knew then serving police members on duty. It is not to the point that your conduct was not sustained. It did not need to be. You did what you did to avoid apprehension and you drove deliberately at a marked police vehicle. You endeavoured to damage and disable the van and you succeeded. You also by these deliberate acts placed the serving members in danger of death and you did so with the required state of mind. That is you knew or foresaw that your conduct would probably create a real risk of death.
I don’t accept for one moment that those other cases are more serious examples. Not at all. Indeed I think this case is more serious. There are matters in mitigation in those cases that have no application in this case. One obvious one being the existence of an early or earlier plea. One significant aggravating factor in this case is the status of the victims. Serving police members on duty whose lives were endangered by your conduct as they tried to intercept an offender lawfully, as was their clear duty.
I have taken into account all of the materials placed before me and the submissions made by both counsel.
Totality
I have taken into account the principle of totality. That is an important consideration here. You have been continuously in custody since January 2017.
I must consider whether the effect of the sentences I will soon pronounce is just and appropriate and commensurate with your overall criminality. I have engaged in a last look at the sentences imposed by this Court and the total effect of them in endeavouring to guard against the imposition of a crushing term upon you. There must be some cumulation as between sentences here. That is obvious enough. These are each serious offences in their own right. Though there are a number of offences with differing elements, conduct and victims, I cannot however lose sight of the fact that there is something of a connection between Charge 1 and 2 and then more so Charges 3 and 4. This episode starts out with your decision to steal the car. That car was then stripped. The arson was to destroy the wreck so there is a close enough connection there. In each case the victim was Mr Mohamed. That arson of course then led to the police intercept and your act in reversing the vehicle and hence endangering the members. Two members were endangered. That conduct also caused the damage the subject of Charge 4 with a different victim, this time Victoria Police. I have considered the case of Phillips and Liszczak v The Queen. 2017 VSCA 313. There is, it seems to me, commonality of conduct in relation to Charges 3 and 4 though of course totally different elements including a different state of mind and different victims as between those two charges.
Though there are separate offences with separate elements and some with separate conduct and different victims, it seems to me at least that I should reduce or moderate to a degree the extent of cumulation here to pay adequate regard to the principle of totality and the overlap or commonality that does exist. I believe that this approach justifies a very significant level of concurrency in relation to the sentence imposed on charge 4.
It is however inescapable that one with your history before the Courts who chooses to commit offences as serious as these will be met with a sizeable head sentence and a sizeable non-parole period.
Forfeiture
There are a number of ancillary orders that are sought to be made here and there is no issue taken with any of these orders. Firstly an application for the forfeiture of the truck that you were driving on the night, pursuant to the provisions of s.33 of Confiscations Act. I am satisfied that it is appropriate to make that order and I forfeit that property, that truck, to the minister pursuant to the signed order.
Disposal
Secondly, there is an application for forfeiture of a phone. That is an application brought pursuant to s.78 of the Confiscation Act. Again there is no issue taken with that. Again I regard it as appropriate to make that order and I forfeit that property into the custody of the chief commissioner of police to be held by him and dealt with by him in the way contemplated by the order. I have signed that order as well.
Compensation
I have also the application for compensation. It operates essentially as a civil judgment debt once I make this order. Again there is no issue taken in terms of that. I am satisfied that the grounds for the making of that order and pursuant to s.86 of the
Sentencing ActI order that you pay to the chief commissioner of Victoria Police compensation in the sum of $14,061.51. Representing the amount of the damage caused to the van.
Licence
I am also required to make an order against your licence in relation to Charge 1. It being a charge of theft of a motor vehicle. I am required pursuant to s.89(4) of the Sentencing Act to make an order against your licence in relation to that charge of car theft. I am at large, though if no period is specified there is a default period of three months. I am going to exceed that period. On that charge, Charge 1, all licences are cancelled and you are disqualified from obtaining any permit or licence or from driving in this state for a period of 12 months from today's date. Given the prison terms that I will be imposing that order will have no practical impact upon you.
I have considered whether I need to make an order against your licence in relation to the conduct endangering life charge and if so whether that order should take effect upon your release from prison. You are going to prison for some years and the ability to obtain a licence upon your ultimate release would no doubt be advantageous to you. I recognise that.
It is not a mandatory order but given the nature of the driving here, I believe that I should make an order against your licence and that it must have a real affect upon you. It is part of the sentence on Charge 3. I do not want a very sizable disqualification measured in years awaiting upon your ultimate release, whenever that is, as that sort of thing can be counterproductive. It can in fact be damaging to your prospects of rehabilitation. I cannot know whether you will be able to obtain parole or not. I am not even allowed to consider that issue and I must act on the basis that you will serve every day of my head sentence.
I can achieve my goal by fixing the duration of the licence order to a future event, being your release and I model the form of my order on that form discussed in the cases of Tran [2002] 4 VR 457 and Caldwell [2004] 8 VR 1.
Pursuant to s.89A of the Sentencing Act, on Charge 3, I cancel all licences to drive and disqualify you from obtaining another permit, or from driving in this State. My order will commence today. You are disqualified from obtaining another permit or from driving in this State, effective from today’s date and ending six months after you are first released from custody, whether on parole or upon the expiry of the sentence. What that means is that you are disqualified from driving and that will be the position for the first 6 months upon your release from custody, whenever that is. Thereafter once the disqualification period passes, of course you would need then to take steps to once again be licensed.
Let me now deal with the individual sentences, the extent of cumulation and the fixing of a non-parole period. If you would stand up please.
On Charge 1, the charge of theft, I convict and sentence you to 20 months' imprisonment.
On Charge 2, arson, you are convicted and sentenced to 2 ½ years' imprisonment.
On Charge 3, conduct endangering life, you are convicted and sentenced to 5 ½ years' imprisonment.
On Charge 4, criminal damage to the police van, you are convicted and sentenced to 2 years imprisonment.
Summary offences
On the summary offence, firstly unlicensed driving you are convicted and sentenced to 14 days imprisonment. And on the charge of driving an unregistered vehicle, you are convicted and fined $500.
Cumulation
The base sentence is the 66 months or 5 ½ years imposed on Charge 3. I direct that 10 months of the sentence imposed on Charge 1, 7 months of the sentence imposed on Charge 2 and 4 months of the sentence imposed on Charge 4 are to be served cumulatively upon the base sentences and upon each other. The 14 day term imposed on the unlicensed driving charge will be served concurrently with all other sentences imposed today.
Total Effective Sentence
What this results in is a total effective sentence of 87 months or 7 years and 3 months' imprisonment.
Non-Parole Period
I direct that you serve a period of 5 years and 10 months or 70 months during which you will not be eligible for release on parole.
Section 18 PSD
You have been in custody now for a period of 538 days and that period has been served already pursuant to this sentence and will be noted in the records of the Court.
6AAA
Had you pleaded not guilty and been found guilty of these matters by a jury, I would have imposed a longer sentence. I would have sent you to prison for 9 years, I would have fixed a non-parole period of 7 ½ years and that is also to be noted in the records of the Court. Just have a seat please.
Are there any other mattes that I need to deal with at all?
MS DANHAM: No, Your Honour.
HIS HONOUR: You each of you understand the orders for the individual sentences and the orders for cumulation?
MR REYNOLDS: Yes, we do, Your Honour.
HIS HONOUR: And the mathematics add up anyway? Yes.
MS DANHAM: Yes, Your Honour.
HIS HONOUR: All right. You'll go down and see your client downstairs, Mr Reynolds?
MR REYNOLDS: Yes, I shall.
HIS HONOUR: Yes, all right. Well look that completes the matter then, Mr Martinez. So Mr Reynolds will come down and have a chat to you downstairs. So Mr Martinez can be removed, thank you.
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