Director of Public Prosecutions v Massey
[2020] VCC 34
•23 January 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01615
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAKE RAYMOND MASSEY |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 December 2019 | |
DATE OF SENTENCE: | 23 January 2020 | |
CASE MAY BE CITED AS: | DPP v Massey | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 34 | |
REASONS FOR SENTENCE
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Subject: Criminal law- sentencing – plea of guilty to one charge of theft and one charge of conduct endangering a person on Indictment and plea of guilty to Summary Charge 4, unlawful assault in company; Summary Charge 11, drive whilst disqualified; and Summary Charge 13, commit an indictable offence, namely theft of motor vehicle whilst on bail – Sentencing Conversation – Koori Court Division – discount for plea of guilty – Community Corrections Order imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L Harrison | Abbey Hogan, Acting Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr G Thomas | Greg Thomas & Associates |
HER HONOUR:
1 Jake Massey, you have pleaded guilty to one charge of theft and one charge of conduct endangering a person. In addition, you consented to summary charges being transferred pursuant to s145 Criminal Procedure Act 2009 and pleaded guilty to Summary Charge 4, unlawful assault in company; Summary Charge 11, drive whilst disqualified; and Summary Charge 13, commit an indictable offence, namely theft of a motor vehicle whilst on bail, and today you have pleaded guilty to other unrelated summary charges that have also been transferred pursuant to s.145 of the Criminal Procedure Act being two charges of unlicensed driving, one charge of unregistered vehicle, one charge of displaying false numberplates.
2 In addition, you have admitted your prior criminal history and that history spans the period from 18 February 2008 until 17 July 2013 and there are relevant convictions recorded for driving offences, dishonesty offences and other crimes of violence against the person.
3 These offences are serious and that is reflected in the maximum penalties prescribed by law and in respect to theft, 10 years’ imprisonment or 1,200 penalty units; conduct endangering person, 5 years’ imprisonment or 600 penalty units; unlawful assault in company, 12 months’ imprisonment; and driving whilst disqualified, 2 years’ imprisonment or 240 penalty units; and commit indictable offence whilst on bail, 3 months’ imprisonment or 30 penalty units.
4 In relation to the driving offences for the first charge of unlicensed driving it is 25 penalty units or three months' imprisonment. The second unlicensed driving charge is 60 penalty units, for an unregistered vehicle, 50 penalty units and displaying false numberplates, 10 penalty units.
5 In relation to licence cancellation, s89(4) of the Sentencing Act 1991 provides that if you are sentenced for the theft of a motor vehicle charge, Charge 1, the Court must make an order fixing a period of disqualification.
6 I shall now proceed to sentence you on the basis of the summary of the prosecution opening that was read out at the sentencing conversation.
7 On Monday, 15 October 2019, you were bailed for an unrelated family violence matter. Bail was extended by Heidelberg Magistrates’ Court and was effective at the time of the commission of this offending.
8 You were 30 at the time of the offending and you are now 31.
9 The offending was committed on 22 November 2018 and involves the victim, Aziz Akyavas. Mr Akyavas was 25 at the time of the offending and is not a person who is known to you.
10 At about 5.30 pm on that date Mr Aziz Akyavas was driving his car, a blue Subaru, north along Grange Road, Fairfield. Grange Road is a two-way street with one lane heading south and the other north. It has space for cars to park along the kerb in each direction and not impede the flow of traffic in either lane.
11 You were driving north on Grange Road, driving a black Holden Commodore, with another person seated in the front passenger seat of that vehicle. The vehicle was owned by your then partner, Jade Wilde. You pulled out onto the wrong side of the road across a single solid white line and proceeded to drive northwards in the southbound lane. Your speed was estimated by witnesses to be around 50 to 60 kilometres per hour. Whilst you were driving on the wrong side of the road, a black SUV was travelling south towards your vehicle. You were required to take evasive action to avoid the SUV and swerved back into the northbound lane, causing your vehicle to collide with the side of the vehicle that belonged to Mr Akyavas causing damage to its right hand side of the vehicle. The SUV was also required to take evasive action.
12 You continued driving on the wrong side of the road, driving away from the scene, causing a further southbound vehicle to take evasive action and pull over to allow your vehicle through. Those facts constitute Charge 2, reckless conduct endangering person and Summary Charge 11, drive whilst disqualified.
13 On 22 February 2012, you were sentenced by his Honour Judge Tinney to a total effective sentence of 66 months with a non-parole period of 45 months for various offending which included a charge of driving in a manner dangerous. As part of that sentence, he made an order disqualifying you from holding a licence which period commenced from the date of the sentence and ended two years after you were first released from custody on 26 August 2018. So that order is due to expire on 26 August 2020. Hence the driving whilst disqualified charge.
14 Mr Akyavas proceeded to follow your vehicle down Darling Street but lost sight of your vehicle. He then saw your vehicle had pulled over to the side of the road. He parked his car beside and slightly in front of your vehicle to stop you from driving off.
15 He got out of his car but left it running and walked over to your car to confront you, asking you, “why did you hit my car, did you know you hit my car?”, and he asked about whether or not you were okay and what was wrong.
16 You said to him, “Do you want to have a go, or do you want to start something?” and words to the effect that you and the passenger were going to bash him. Your passenger said, “Go out and go and get him.”
17 Mr Akyavas went to the front of your vehicle and pulled off the front number plate. You and your passenger then got out of your vehicle and walked towards him. As he tried to hold you back, your passenger punched him to his right side and you and the passenger from your vehicle continued to assault the victim by punching, kicking and kicking him.
18 He suffered bruising to various parts of his body and a scrape to his elbow. (That constitutes Summary Charge 4 – the assault in company charge)
19 He, you and your passenger then ended up across the road in a driveway and he was trying to hold you both back. Your passenger then said to you, “Get in his car, let’s take his car.” You walked across the road back towards the vehicle and entered his driver’s side door of the vehicle and attempted to close the door.
20 Mr Akyavas then rushed at his car and stopped the door from closing before sitting on top of you in an attempt to stop you from driving the vehicle. He started to call out for help, asking people to call police, whilst hanging out of the open door. Your passenger went to the driver’s side door where he was. You put the victim’s vehicle in drive and pressed the accelerator with the driver’s door still open, causing the front right of the victim’s car to impact with a third person’s vehicle. (Those facts constitute the theft charge, Charge 1)
21 Mr Akyavas attempted to keep you in the vehicle but you exited the vehicle through the passenger side door. You then got back into your car and reversed into another two parked cars before driving off. You stopped to allow your passenger to get back in the vehicle before leaving the area and returning to Heidelberg.
22 The Court has observed the dash cam recording of the driving and also the mobile phone recording of the assault and theft of the motor vehicle that show the circumstances of your offending as I have just described.
23 At the time of the offending, you were on bail that was current and that is why you have been charged with Summary Charge 13, commit indictable offence whilst on bail.
24 You were arrested by police on Wednesday, 16 January 2019. A record of interview was conducted during which you initially denied any involvement in the offending but on recommencement of the record of interview, you did make some admissions in relation to the driving on this occasion but gave a false explanation as to what had occurred.
25 No Victim Impact Statement has been filed. Common sense dictates that the victim would have been upset by reason of your behaviour on that occasion.
26 Mr Massey, in sentencing you, there is a need for the court to emphasise denunciation, deterrence, both general and specific, and also the protection of the community. This is another example of bad driving on your behalf and does reflect an ongoing attitude of disobedience to a law and does not reflect well on your rehabilitation prospects.
27 There are other matters however that have demonstrated the different side to you. The matter proceeded in the Koori Court Division as a sentencing conversation and Uncle Steve Delaney and Auntie Yvonne Luke were present and participated in the conversation as Elders and Respected Persons. Your sister, Amanda, was present and supported you throughout the hearing and she is present today.
28 You are currently unemployed and you were so at the time of the offending. You have been held at the Melbourne Remand Centre in custody since your arrest.
29 You are of Aboriginal background through your mother and maternal grandfather. You are of Yorta Yorta descent.
30 Your early developmental life has been characterised by dysfunction, abuse and neglect. You suffer long term depression.
31 Both your parents separated when you were twelve. You experienced domestic violence being perpetrated by your father against your mother, especially whenever he drank.
32 Your mother and father both re-partnered. Over the years your contact with your father has been infrequent. He is still alive. Your mother died in mid-2018 from liver failure.
33 You have a brother and three sisters and also three maternal half-sisters. From age 14 you were very disruptive and would often abscond from home, such that from that age you were placed in secured residential care and thereafter you served periods in youth detention.
34 You have a son who is aged 12 from a former relationship and your son is now being cared for by one of your half-sisters, Nicole.
35 Prior to your remand, you had been granted a Housing Commission home in Werribee, but you have lost that as a consequence of your remand.
36 You have had limited formal education and completed Year 7 at high school and then enrolled in automotive and electrical studies at the Broadmeadows TAFE.
37 Your experience with the criminal justice system started when you were very young as a young offender and in effect, you have been in custody, including Youth Justice detention and adult custody, for a period of almost 11 years. During that time, you have only had brief periods of freedom. You are a person who is at real risk of being institutionalised.
38 You have only had very brief periods of employment in between the times you have spent in custody and you have worked in the past as a concreter. To your credit you have taught yourself how to read and write in prison.
39 There is a long term history of alcohol abuse commencing at age 13 and that escalated in your early teenage years. You were also using cannabis and other drugs such as amphetamines, ice and ecstasy and in the past you have abused prescribed medications as well.
40 You have experienced a significant grief reaction to your mother’s death, who died a couple of months prior to you having been released from custody.
41 Ms Cidoni states in her report that you fit the diagnostic criteria for Major Depressive Disorder that is chronic and most likely commenced in childhood. She says you have PTSD and borderline personality traits and you also meet the criteria for substance use disorder.
42 She states you are vulnerable to future substance abuse and you are in need of intensive treatment and professional counselling to address your symptoms and to assist you to rebuild and provide you with some coping tools.
43 Given your psychological profile, she states that they can be attributable to your difficult and complex childhood.
44 I accept that your background is one that can be characterised as one where you have experienced significant and profound trauma and depravation and I have applied the principles of the case of Bugmy. [1] Those effects do not diminish with the passage of time or repeated offending and I have given full weight to those principles in formulating the appropriate sentence.
[1]Bugmy v The Queen (2003) 249 CLR 571, 592-593 [37],594-5[42]-[44] (French Cj, Hayne, Crennan, Kiefel, Bell and Keane JJ) (“Bugmy”)
45 I accept that your moral culpability is reduced to a degree and also the need to impose general and specific deterrence is moderated, however your situation does mean that the need to provide for community protection is a significant factor in formulating the appropriate sentence.
46 I have had regard to the submissions made by Mr Thomas on your behalf.
47 I accept that you entered a plea of guilty at committal on 14 August 2019 at the earliest opportunity. There is real utility in your plea. You have spared the cost and expense of a trial and also spared the witnesses, particularly the victim of your crime, having to come to Court to give evidence. You have facilitated justice and your sentence will be discounted accordingly.
48 I have taken into account what I consider to have been your genuine participation in the sentencing conversation. During that conversation you were very respectful and responsive towards both Elders and Respected Persons.
49 Aunty Yvonne expressed her disappointment concerning your conduct. She knew your late mother and your personal background and expressed some sadness about your situation.
50 You told her that this was the first time you had been involved with the Koori Court. You spoke of only having a very general understanding of your Yorta Yorta history. Since being in jail you have been learning more about your Aboriginal history and background.
51 You now acknowledge that what you did was wrong and you understand that you need to do courses in the future such as a responsible driving course so that you have a better understanding of your responsibilities as a driver and the consequences of driving unsafely.
52 Uncle Steve emphasised to you the necessity to comply with the rules of the road and the need to respect other road users. He cautioned you about driving in the future without being properly licensed.
53 You were suitably admonished by both Elders and expressed your sorrow for what had happened. You stated that you felt bad about your conduct and you never wanted to hurt anyone. You acknowledge that there was a potential for greater harm and tragedy due to your erratic driving on this occasion.
54 In the course of the conversation you said that you have grown up a lot and you believe that you can make better choices. You said you wanted to get out of jail and make something of your life. You wanted a real life, one where you can be a positive influence upon your son. Your son knows about your situation and is very upset with you about your conduct and you having returned to jail. In the future you will need to make amends to repair the harm that you have caused in your relationship with him.
55 The Elders both urged you to respect yourself and respect your family and think about the consequences of your actions and the potential for your conduct to impact on others, but in particular on your young son. They urged you to reconnect yourself with your heritage and to learn more about your Aboriginal culture. Uncle Steve emphasised how culture has the potential to make you a stronger person and make you be more confident in your approach to life.
56 Your sister, Amanda, confirmed that she has been supporting you over these past 12 months or so since you have been in custody and her observation was that your thought patterns had changed and that it was a genuine change and that you are now presenting as being more responsible.
57 She now feels more comfortable about offering assistance to you given that change in your outlook on life and your commitment to reform. She said that one of her sisters is involved with her partner in a tow truck business and there may be an opportunity for you to work with that company in the future.
58 She confirmed your grief reaction to your mother’s death is marked and that she was there to support you.
59 Mr Thomas sought an order that would involve you being released on a Community Correction Order with there being some consideration of you being assessed as to your eligibility to attend the Wulgunggo Ngalu Learning Place.
60 Wulgunggo Ngalu is a State wide culturally appropriate residential diversion program that has been set up for Aboriginal men who are on Community Correction Orders as a result of being found guilty of a criminal offence. The program is located in Yarram and the emphasis in the program is on connecting or reconnecting with culture and on individually tailored programs that combine cultural healing with the development of skills to promote a positive and healthy lifestyles in the future.
61 Mr Harrison, on behalf of the Crown, submitted that an order that is a combination of jail to be followed by a Community Correction Order could be considered as an appropriate disposition. He accepted that you had engaged well in the sentencing conversation process.
62 Mr Massey, you are still a relatively young Aboriginal man who, with the significant support provided by your sister and others and with the potential of having further support being put in place on a Community Corrections Order means that you do have some good prospects for the future.
63 Overall I consider that notwithstanding your very long involvement with the criminal justice system that there is cause for some optimism and I have assessed your rehabilitation prospects as being good, but that is predicated upon you working on your own healing and addressing your problems and you will be given that opportunity through the Community Correction Order and through the programs at Wulgunggo Ngalu.
64 I have taken into account your genuine participation in the sentencing process, it being a vigorous and challenging one. You now have an appropriate attitude and you accept responsibility for your wrongdoing. It is up to you to make good your expressed commitment to change through undertaking the proposed Community Correction Order that I have already outlined to you.
65 Having regard to all the features of the case that I have highlighted, I do consider that a just sentence in all the circumstances is a combination sentence which reflects the time served to be followed by a Community Correction Order of 2 years’ duration with the special conditions of supervision, treatment for drug and alcohol (including testing) and treatment for mental health and offence specific programs as I have already outlined.
66 I am satisfied that such an order would be capable of satisfying all the sentencing principles and would offer you the best prospects for your rehabilitation in the future, and importantly would also provide for the best protection of the community.
67 It is of real benefit, not only just to you individually, but also to the community generally to encourage you to pursue your own rehabilitation so as to reduce the likelihood of reoffending in the future.
68 I have regard to the guideline sentencing judgment in Boulton v R[2] which accepts that a Community Correction Order of itself, is punishment and is capable of being a deterrent to others and providing for specific deterrence to individuals and also confirms that such an order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.
[2][2014] VSCA 342
69 I will move now to just briefly set out the circumstances of the unrelated summary offending that has been transferred pursuant to s.145 of the Criminal Procedure Act. There are two occasions of unlicensed driving. The first occasion was on
24 October 2018. Following a routine intercept police confirmed that you were not the holder of a licence.
70 In relation to the second occasion of unlicensed driving, it occurred on 16 January 2019, the date of your arrest. Again that was a routine enquiry following the police noting some novelty plates that had been put on your vehicle and their enquiries confirmed that the vehicle was unregistered and that the number plates were false, and that is the circumstances of that offending.
71 In relation to the formal orders I will now announce those, so could you please stand?
72 In relation to the charge of theft, you will be convicted and sentenced to 1 month’s imprisonment.
73 In respect to Charge 2, conduct endangering person, you will be sentenced to the equivalent of time served which I have an estimate of 372 days to be followed a 2 year Community Correction Order in the terms that I have already described.
74 In relation to Summary Charge 4, unlawful assault, you will be convicted and sentenced to 6 months’ imprisonment.
75 In relation to Summary Charge 11, drive whilst disqualified, you will be convicted and sentenced to 1 month’s imprisonment.
76 In relation to Summary Charge 13, commit indictable offence whilst on bail, you will be convicted and sentenced to 1 month’s imprisonment. Those sentences are all concurrent.
77 I note that I have advised you about what the consequences of any contravention of an order are and you have been advised by your counsel about that and you have indicated through your counsel that you consent to the order being made in the terms provided.
78 I declare that there is 372 days pre-sentence detention and direct that that be entered into the records of the court.
79 In relation to the unrelated summary charges, the two unlicensed driving, unregistered vehicle and display false plates, you will be convicted and an aggregate fine of $250 will be imposed.
80 I make the following declaration pursuant to s6AAA, but for your plea of guilty, I would have imposed a term of imprisonment of 3 years to serve 2 years.
81 Finally I make an order in respect to your licence pursuant to 89(4) of the Sentencing Act 1991, upon your conviction in respect to Charge 1, the theft charge, your licence will be disqualified and all licences cancelled for a period of 6 months effective from today’s date.
82 I think that covers everything. We just need for the order to be signed and then Mr Massey will be free to go. This is a bit of a roadmap for you now,
Mr Massey. You will be released today but you will have to go to the Community Corrections Office and get inducted. You will have the chance to be with your family over the next little while but the intention is that arrangements will be put in place for you to go to Wulgungoo Ngalu Learning Place and the position is open until 28 January 2020.
83 I think your sister has been here all the time so you are aware of all of the arrangements?
84 MS MASSEY: Yes, that is fine. I just wanted to take into consideration, is there enough time to do everything considering Monday is a public holiday?
85 HER HONOUR: That is a good point. What we can do is we can notify Corrections, Rebecca Edwards, who is the Community Corrections Officer, and we can also flag with Wulgunggo Ngalu that that query has been raised and I am sure one day is not going to make any difference but we will confirm that and then we will communicate with Mr Thomas and he can let you know.
86 MR THOMAS: Yes.
87 HER HONOUR: That is a good point. I do not think anyone has taken that into account. I have signed the order. If you could go with Mr Thomas and get
Mr Massey to sign that and then I understand he has got to be processed downstairs, Mr Thomas.
88 MR THOMAS: Yes, Your Honour.
89 HER HONOUR: We will make available a copy for you, Mr Thomas.
90 MR THOMAS: Thank you, Your Honour.
91 HER HONOUR: Thank you both and I do wish you well, Jake. You have had a tough time in the past but you have done the wrong thing and this is really an opportunity for you to change directions. You are very fortunate you have your sister who is willing to stand by you.
92 OFFENDER: Thank you.
93 HER HONOUR: All the best and I will see you in six months for Judicial Monitoring on 18 May 2020, hopefully with good news.
94 OFFENDER: Thank you, yes, have a good day.
95 HER HONOUR: Thank you both, Mr Thomas and Mr Harrison.
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