Director of Public Prosecutions v McKay
[2021] VCC 1782
•12 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00905
Indictment No. L11618588
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BOBBY MCKAY |
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JUDGE: | Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 August 2021 | |
DATE OF SENTENCE: | 12 November 2021 | |
CASE MAY BE CITED AS: | DPP v McKay | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1782 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Theft – Dangerous driving while pursued by police – Damage emergency service vehicle by reckless driving – Aggravated offence of recklessly exposing an emergency worker to risk by driving – Reckless conduct endangering serious injury – Series of offences committed over short periods of time – All offences committed whilst on bail – Very high moral culpability – Verdins principle 5 engaged – Appalling prior criminal history – Early pleas of guilty – Disadvantaged upbringing – Guarded prospects of rehabilitation
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M R Wilson | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr T Battersby | Greg Thomas Barrister & Solicitor |
HIS HONOUR:
1Bobby McKay, you have pleaded guilty to an indictment containing six charges of theft (Charges 1, 3, 4, 8, 10 & 12),[1] two charges of dangerous driving while pursued by police (Charges 2 & 6),[2] two charges of damage emergency service vehicle by reckless driving (Charges 5 & 7),[3] one charges of the aggravated offence of recklessly exposing an emergency worker to risk by driving (Charge 9)[4] and one charge of reckless conduct endangering serious injury (Charge 11).[5]
[1] Contrary to Crimes Act 1958 (‘CA’) s 74.
[2] Contrary to CA s 319AA.
[3] Contrary to CA s 317AG.
[4] Contrary to CA s 317AF.
[5] Contrary to CA s 23.
2You have also consented to have this Court deal with ten transferred related summary offences comprising: one charge of driving a motor vehicle when directed to stop (Summary Charge 4),[6] two charges of failure to stop motor vehicle after accident damaging property (Summary Charges 8 & 32),[7] two charges of unlicensed driving (Summary Charges 13 & 29),[8] one charge of refuse to undergo a preliminary breath test when required (Summary Charge 14),[9] two charges of contravene conduct condition of bail (Summary Charges 15 & 30),[10] and two charges of commit indictable offence whilst on bail (Summary Charges 16 & 31).[11]
[6] Contrary to Road Safety Act 1986 (‘RSA’) s 64A.
[7] Contrary to RSA s 61(1)(a).
[8] Contrary to RSA s 18(1)(a).
[9] Contrary to RSA s 49(1)(c).
[10] Contrary to Bail Act 1986 (‘BA’) s 30A(1).
[11] Contrary to BA s 30B.
3The maximum penalties for the indictable offences are as follows:
Theft — 10 years’ imprisonment and/or a fine of 1200 penalty units.[12] Upon conviction for the charge of theft of a motor vehicle, any driver licence must be cancelled and a disqualification period in the court’s discretion imposed.[13]
Dangerous driving while pursued by police — three years’ imprisonment and/or a fine of 360 penalty units. A mandatory minimum licence disqualification period of 12 months applies.[14]
Damage emergency service vehicle by reckless driving — five years’ imprisonment and/or a fine of 600 penalty units.
Aggravated reckless exposure of emergency worker to risk — 10 years’ imprisonment and/or a fine of 1200 penalty units.
Reckless conduct endangering persons — five years’ imprisonment and/or a fine of 600 penalty units.
[12] At the relevant time a penalty unit was fixed at $165.22. See SA s 110; Monetary Units Act 2004 ss 5(2) & 5(3) and Victoria, Victoria Government Gazette, G16, 23 April 2020.
[13] Pursuant to Sentencing Act 1991 (‘SA’) s 89(4).
[14] Pursuant to SA s 89(3).
4The maximum penalties for the related summary offences are as follows:
Drive motor vehicle when directed to stop — 12 months’ imprisonment and/or a fine of 120 penalty units.[15] A mandatory minimum licence disqualification period of 12 months applies.[16]
Failure to stop motor vehicle after accident damaging property — 14 days’ imprisonment and/or fine of five penalty units.
Unlicensed driving — six months’ imprisonment and/or a fine of 60 penalty units.
Refuse to undergo a preliminary breath test when required to do so — 12 months’ imprisonment and/or a fine of 120 penalty units.[17] A mandatory minimum licence disqualification period of 4 years applies in your case.[18]
Contravene conduct condition of bail — three months’ imprisonment and/or a fine of 30 penalty units.
Commit indictable offence whilst on bail — three months’ imprisonment and/or a fine of 30 penalty units.
[15] This is the maximum penalty applicable to second or subsequent offences. A first offence carries a maximum penalty of 6 months’ imprisonment and/or fine of 60 PU. The offender is subject to the higher maximum penalty, given his prior conviction (on 25 September 2017) for failing to stop vehicle on police request (offence committed on 31 August 2016).
[16] See s 64A(4) of RSA, which applies to subsequent offences (as is the case here).
[17] This is the penalty applicable to a second offence against s 49(1). The offender falls into this category because of a prior finding of guilt for an offence against s 49(1), namely exceeding prescribed concentration of alcohol (between .000% and .049%, committed on 18 April 2010).
[18] This is the minimum disqualification period applicable to a subsequent offence against s 49(1)(c). The offender falls into this category because of a prior finding of guilt for an offence against s 49(1), namely exceeding prescribed concentration of alcohol (between .000% and .049%, committed on 18 April 2010). See RSA s 50(1B).
The Facts
5The prosecution filed an amended summary of prosecution opening dated 12 July 2021[19] which your counsel told me I can accept as a statement of agreed facts.
[19] Exhibit P1.
6You were born on 24 June 1989. You were 31 years old at the time of the offending and are now 32 years old. You are aboriginal, but you were deemed ineligible by the Court to be sentenced in the Koori Court.
Background matters relevant to the present offending
7On 27 August 2017, your driver licence expired.
8On 25 September 2017, the Melbourne Magistrates’ Court convicted you of charges that included two separate car thefts, and a separate incident of failing to stop a vehicle on police request. You were sentenced to an aggregate term of four months’ imprisonment and disqualified from obtaining a driver licence for six months. You were only to be relicensed upon the order of a Magistrate. You did not subsequently obtain a driver licence.
9On 22 June 2020, you attended Ballarat Magistrates’ Court on unrelated charges. You were granted bail, on conditions that included you not drive a motor vehicle.
2 July 2020
First Incident
10On 2 July 2020, at 4:40 pm, Corey Warfe parked his blue dual-cab utility (‘the utility’) on The Esplanade in Lakes Entrance, at the intersection with Carstairs Avenue. He got out of the utility to deliver milk to a restaurant. A CCTV camera at a nearby service station showed you get into the utility and drive away. Mr Warfe’s wallet, containing bank cards, was in the utility at the time you stole it.
11These events comprise Charge 1, which is a rolled-up charge covering the theft of the utility and the wallet, Summary Charge 29 (unlicensed driving), Summary Charge 30 (contravene conduct condition of bail by driving) and Summary Charge 31 (commit indictable offence whilst on bail).
Second Incident
12Mr Warfe’s friend saw and recognised the stolen utility shortly afterwards and followed it while keeping police updated. At 5:17pm, a police vehicle, driven by Senior Constable Patrick Shegog, with First Constable Donald Cater as passenger, caught up with the utility just south of Mossiface, where the police vehicle’s siren and lights were activated. You pulled over to the left and slowed down almost to a stop, before rapidly accelerating. The police vehicle pursued you for about one minute. You reached speeds of about 125 kph and drove erratically, including driving on the wrong side of the road. This comprises Charge 2 (dangerous driving while pursued by police).
13Police eventually terminated the pursuit owing to safety concerns.
14The road was made of bitumen with a single lane in each direction, narrow shoulders, double centrelines in the curvier sections, and divided lines in the straighter sections. The speed-limit was 100 kph. At the time of the pursuit, the road was dry, visibility was good and there was minimal traffic on the road.
15Between 7:00pm and 7:30pm, you drove the utility to a BP service station in Bruthen. You filled the utility with petrol and went inside the shop. You asked for two packets of cigarettes, but there was only one left. You attempted to pay using one of the cards from the stolen wallet, but the transaction was declined so you told the attendant that you would go outside and transfer some money and come back to pay. You got into the utility and drove away without paying. This comprises Charge 3 which is a rolled-up charge covering the theft of the petrol and the cigarettes.
16The stolen utility was recovered by police in Mill Park on 9 July 2020.
6 July 2020
Third Incident
17On 6 July 2020, at 1:00pm, John Pizzey was sitting in the driver’s seat of his red Range Rover Velar (‘the Range Rover’), parked in Powlett Street, East Melbourne, near the corner of Grey Street. You knocked on the driver’s side window and said, ‘There’s something melting or on fire at the back of your car. You shouldn’t drive it.’
18Mr Pizzey followed you to the back of the car and followed your suggestion to go down on the ground to inspect the defect. While he was on the ground, you got into the driver’s seat and, despite protestations from Mr Pizzey, you refused to get out. While you were trying to start the car, Mr Pizzey reached into the car to retrieve his wallet, phone and car key. A moment later, you succeeded in starting the car using the keyless ignition and drove away in a southerly direction along Powlett Street. This comprises Charge 4 (theft of a motor vehicle).
Fourth Incident
19At 4:50pm that afternoon, you telephoned the Land Rover dealership at Ingles Street in Port Melbourne, claiming you were unable to refuel your car at the service station. At about 5:30pm, you arrived at the dealership in the stolen Range Rover and drove directly into the workshop. You told staff that you had had an argument with you sister, that she had taken off with the key, and you could no longer refuel your car. You offered $500 to refuel the car. Staff became suspicious so they checked the VicRoads register, which indicated the car was reported as stolen. They called police.
20The first police car on the scene parked across the driveway of the dealership. First Constable Sam Dunsford walked towards the Range Rover, drew his firearm and told you to ‘stop there’. You drove through a gap next to the police car but scraped it and damaged the front panels of both cars. You left the scene without stopping. The incident was recorded on CCTV and police body worn cameras. This comprises Charge 5 (recklessly drive a motor vehicle so that damage was caused to an emergency service vehicle, knowing the vehicle was an emergency service vehicle) and Summary Charge 4 (driving a motor vehicle when given a direction to stop).
Fifth Incident
21At 7:10pm that evening, Constables Amanda Pascoe and Aaron Clough saw the Range Rover parked at Domino’s Pizza in Main Street, Mordialloc. They called for back-up. At this stage, you had not seen the police, so you got out of the Range Rover. Upon seeing the marked police car, you jumped back into the Range Rover and drove off. The police officers followed you in their vehicle and activated the vehicle’s lights and siren. It was night-time and the road was wet. You drove north along Beach Road, which has a speed limit of 60 kph. You drove with no head lights or taillights turned on, and you overtook other cars, at times exceeding 150 kph. Police promptly terminated the pursuit owing to safety concerns. This comprises Charge 6 (dangerous driving while pursued by police).
Sixth Incident
22At 7.15pm, Acting Sergeant Trevor Bergman of the Victoria Police Transit Safety Division saw the Range Rover at a Caltex service station on the corner of Beach Road and Bridge Road in Sandringham, where you were refuelling. The incident was recorded on CCTV and was played by the prosecution at the plea hearing.[20] The footage shows that Bergman parked his marked police car in front of the Range Rover to block its path, and then got out to arrest you. You quickly got back into the Range Rover and closed the door. Bergman unsuccessfully tried to open the door, and then sprayed you with OC spray through the open rear window but he only managed to spray the back of your head.
[20] Exhibit P4.
23You began to reverse at the same time as a second marked police car, occupied by Leading Senior Constable Mark Thornton and Senior Constable John Van Der Ven, drove in to block the reversing Range Rover. The Range Rover reversed further onto the second police car, hitting the front lights and bumper. Thornton and Van Der Ven got out and approached the Range Rover.
24At that moment, a third marked police car, occupied by Senior Constable Kristian McInerney and Constable Thomas Mayer, arrived at the scene and blocked the Range Rover’s exit to the front left, next to Bergman’s car. You drove forward, colliding head on with the third police car. Bergman’s arm was extended through the Range Rover’s window, which caused Bergman a painful bruise.
25You then reversed the Range Rover, bumping into the petrol bowser, before driving forward and scraping past the front of the third police car. As a result of the collision, Thornton sustained soft tissue injuries to his left wrist, elbow and a 6mm by 3mm tear in his left shoulder. You drove east on Bridge Street, colliding with a Toyota van as you escaped the scene.
26The charges arising from this incident are: Charge 7 (recklessly drive a motor vehicle so that damage was caused to an emergency service vehicle, knowing that the vehicle was an emergency service vehicle), Charge 8 (theft of petrol), Charge 9 (aggravated exposure of emergency workers to risk), Summary Charge 8 (failure to stop a motor vehicle after an accident damaging property, which is a rolled up charge relating to three police vehicles and the Toyota van), Summary Charge 13 (unlicensed driving), Summary Charge 15 (contravene conduct condition of bail by driving), and Summary Charge16 (commit an indictable offence whilst on bail – aggravated exposure of emergency workers to risk).
27I note there is no charge relating to the injuries sustained by Acting Sergeant Bergman and you will not be punished for this conduct. It was led by the prosecution to provide context to your other offending on this occasion.
Seventh Incident
28Shortly after leaving the Caltex petrol station, you parked the Range Rover on Fernhill Road in Sandringham. You walked around the area for a short time. At 7:40pm, you approached Xiao Lan Zhang, who was sitting in her red Toyota Corolla (‘the Corolla’) on Fernhill Road. You knocked on the window and told her ‘your car smells’ and pointed to the rear passenger side. Ms Zhang got out and walked to the back of her car. You ran to the driver’s seat and got in. Ms Zhang attempted to pull you out and take the keys out of the ignition, but you sped off with the car door open. Police later found a hat you had worn and a can of Woodstock bourbon in the area. This comprises Charge 10 (theft of motor vehicle) and Charge 11 (reckless conduct endangering serious injury).
Eighth Incident
29At 8:15 pm, Michael Cham was driving his BMW sedan at 80 kph on the Monash Freeway from Chadstone to Endeavour Hills. He felt an impact and heard a loud noise on the driver’s side. He then saw a red car ‘fly by’ at high speed. Mr Cham’s car sustained damage to the driver’s side rear panel and mirror. The incident was recorded on Mr Cham’s dash camera. This comprises Summary Charge 32 (failure to stop a motor vehicle after an accident damaging property).
Nineth Incident
30At 8:30pm, you drove the Corolla to a 7/11 service station on the corner of Ferntree Gully Road and Springvale Road in Wheelers Hill. You stole a meat pie and ate it without paying for it. You asked to buy cigarettes but were refused. This comprises Charge 12 (theft).
31Critical Incident Response Team and canine unit members arrived at the 7/11 at 9:00pm and arrested you. Inside the Corolla, police located a wallet with a driver licence and credit cards in the name of Corey Warfe (the victim of the first theft – Charge 1).
Tenth Incident
32You were taken to Melbourne West police station where you were required to undergo a preliminary breath test, under s 53(1)(c) of the Road Safety Act 1986, on the basis that you had been in charge of a motor vehicle when it was involved in an accident in the last three hours. You refused to undergo the test. This comprises Summary Charge 14 (refuse preliminary breath test).
Interview, charges and remand
33Police commenced a record of interview at 10.52pm. You told them you had ingested batteries prior to your arrest. At 11:05pm, they called the Forensic Medical Officer regarding an assessment for interview. At 11:40pm, Dr Rachel Marr assessed you over the phone. You refused to speak to Dr Marr directly, but police asked you a series of questions on behalf of Dr Marr and relayed your answers back to her. Dr Marr assessed you as unfit for interview.
34At 1:00am, you were transported to St Vincent’s Hospital to be medically assessed regarding the batteries you stated you ingested. You were later cleared from St Vincent’s Hospital and returned to Melbourne West police station where you were charged and remanded in custody.
35You gave your counsel the following instructions regarding the circumstances surrounding your offending conduct:
(1) You were released from custody on 10 January 2020 after serving 18 months’ imprisonment.
(2) On 19 June 2020, you were stabbed by your nephew, Shane McKay, and received wounds to your forehead and upper left arm.
(3) As a result of this incident, you were excluded from the house where you had lived since January 2020.
(4) Without a place to live, you travelled first to Bendigo with your father, then to Lakes Entrance to stay with your stepmother.
(5) During your time at Lakes Entrance, your mental health deteriorated owing to your change in circumstances and your increased drug use. During this time, you were using heroin, methamphetamine, GHB, and cannabis daily.
(6) When you stole the first motor vehicle on 2 July 2020, it was with a view to returning to Bacchus Marsh to see your partner. Instead, you stayed with a friend in St Kilda between 2 July and 6 July 2020. During this time, you were affected by suicidal ideation.
(7) You instruct you have little recollection of the offending on 6 July 2020 and that it occurred during a period of mental disturbance. You further instruct while watching the CCTV of the offending, you struggled to believe you were the person driving the vehicle.
Victim Impact
36A victim impact statement from Ms Zhang was tendered by the prosecution and read aloud in Court by the prosecutor.[21]
[21] Exhibit P5.
37Ms Zhang described experiencing feelings of guilt, stupidity, anxiety, anger, fear and loss of trust in society at times as a result of your offending conduct. She was also financially impacted by your offending, incurring expenses related to changing her home security system, replacing the handbag you stole, as well as travel expenses.
38Your other victims did not prepare victim impact statements. Nonetheless, where no victim impact statement is relied upon, a sentencer may draw reasonable inferences from the known circumstances regarding the likely impact of an offence upon any victim.[22]
[22] See R v Miller [1995] 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ); R v Lomax [1998] 1 VR 551, 559–560 (Ormiston JA, Winneke P and Hedigan AJA agreeing); R v Rankin [2001] VSCA 158 [10] (Winneke P, Vincent JA and O’Bryan AJA agreeing); MA v The Queen [2012] VSCA 214 [83] (Neave JA, Bongiorno JA and Whelan AJA agreeing).
Offence Seriousness
39The twenty-two offences you committed are all serious enough, carrying sentences of imprisonment ranging from 14 days to ten years. Overall, your offending conduct was appalling.
40Your driving on both occasions placed emergency workers and other members of the community at significant risk of injury. You stole three motor vehicles from their innocent owners and drove them like a lunatic.
41The first series of offences, committed by you on 2 July 2020, results in you falling to be sentenced by me on six charges, which you committed in the space of only 38 minutes. Police took the very understandable decision to abandon their pursuit of you because of the danger you posed to other road users.
42The second series of offences, committed by you on 6 July 2020, just four days later, was much more protracted and results in you falling to be sentenced by me on 16 charges, which you committed in the space of eight hours. This course of offending involved the eight separate but connected incidents described above. Your conduct during the sixth incident, which was caught on CCTV footage, which I have viewed, is very concerning. Moreover, your offending conduct seriously escalated between the two series of offences.
43A one stage, once again, police took the very sensible decision to terminate their pursuit of you because of the danger you posed to other road users. At many stages during this eight-hour offending rampage you could have resiled from committing further criminal offences and simply stopped, but you did not.
44Moreover, while you repeatedly flaunted the law of this State, you were unlicenced and you were committing breaches of bail, including a specific condition you not driver a motor vehicle, to which you were admitted only 10 days before committing the first series of offences.
45Overall, I assess your moral culpability as being very high. You present a clear and present danger to the Victorian community, particularly emergency workers and the road users of this State.
46Particularly concerning are the rolled-up charge of the aggravated form of recklessly exposing four police officers to risks to their safety by driving, the aggravating circumstances being your offending was committed in a stolen vehicle and in connection with other relevant offences; the two charges of dangerous driving while pursued by police; the two charges of damaging an emergency service vehicle by reckless driving; and the one charge of reckless conduct endangering serious injury.
47Charges 5, 7 and 9 on the Indictment were inserted into the Crimes Act1958 in 2017 by s 3 of the Crimes Legislation Amendment (Protection of Emergency Workers and Others) Act 2017. In the Statement of Compatibility accompanying the Bill for the Act, the then Minister for Police, Ms Lisa Neville, said:
The bill introduces new offences to specifically address incidents where offenders use motor vehicles to harm police and other emergency workers.
The bill delivers on the government’s commitment to protect police and other emergency workers from violence and harm.[23]
[23] Victoria, Parliamentary Debates, Legislative Assembly, 2 November 2017, 3665.
Later, in introducing the Bill for the Act, Ms Neville, said in her second reading speech:
Violence towards police and emergency workers in the line of duty is unacceptable and will not be tolerated. These reforms reflect the government's commitment to cracking down on offenders who harm, or seek to harm, a police officer or emergency worker.
Through the design of these offences and penalties the government’s expectation and intention is clear — charges for the offences of exposing an emergency worker to risk offence and the damage to an emergency services vehicle charges can and should (where appropriate) be laid and prosecuted simultaneously, thereby requiring the imposition of a custodial sentence.[24]
[24] Ibid 3668.
48Charges 2 and 6 on the Indictment were inserted into the Crimes Act in 2012 by s 32 of the Justice Legislation Amendment (Family Violence and Other Matters) Act 2012. In introducing the Bill for the Act, the then Attorney General, Mr Robert Clark, said:
Despite [a provision in the Road Safety Act 1986], some drivers continue to seek to flee from police. A Victoria Police internal evaluation of pursuit data from 2002 to 2011 found that there were 721 pursuits in 2011, giving rise to 102 collisions and 3 fatalities. This is 62 more pursuits than in 2010, 91 more than in 2009 and 176 more than in 2002.
Victoria Police do not instigate pursuits — it is individual drivers who decide to disregard clear and lawful directions from police members to pull over and who then flee at speed, driving dangerously or highly negligently, and thereby create danger to other road users, police members and themselves.
It is clear that more needs to be done to get through to drivers the clear message that if they seek to flee from a lawful police direction to stop, they will face very serious consequences.[25]
[25] Victoria, Parliamentary Debates, Legislative Assembly, 15 November 2012, 5077.
49Clearly, with offences of this type, general deterrence, denunciation and just punishment must be given significant weight.
50The three theft of motor vehicle charges are serious examples of this offence, particularly the two committed by you while their owners were present and attempting to resist your appropriations of their property.
Personal Circumstances
51You were assessed by a psychologist, Gina Cidoni, on 16 April 2021. Ms Cidoni’s psychological assessment report was tendered at your plea.[26] You gave her a detailed personal history.
[26] Gina Cidoni, Psychological Assessment Report on Bobby Floyd McKay, dated 12 April 2021 (Ex D2) (‘Cidoni Report’).
52You were born in Melbourne and raised in Mill Park by your mother. You are Aboriginal on both sides of your family. You have one brother, aged 29, who is imprisoned at Ravenhall Correctional Centre. You get on well with him. You have a sister whom you describe as a drug user and troublemaker.
53You cannot remember living with both parents at any time when they were together. You told Ms Cidoni your father was severely violent toward your mother and you saw photographs of her injuries, including stab wounds. Apparently, your father went to prison many times for violence against multiple partners. You reported he continued to intimidate and try to control your mother for years afterwards and he terrorised her partners.
54You were taken from your mother when you were six years old and lived with your father for six months. You told Ms Cidoni your father was extremely neglectful. You said he has 16 children. Your last contact with your father was at the time of your arrest in July 2020. Your father was staying at your house beforehand. You told Ms Cidoni he was very manipulative, and you had let him in, which you came to regret. You said he goes from house to house, using people. You felt you had spiralled out of control because of your father’s presence.
55You told Ms Cidoni your mother began drinking alcohol heavily when you were aged 16 after she had a breakdown. She would typically consume a bottle and a half of Jim Beam in a sitting. You told Ms Cidoni your mother does not shower and you think she has given up on life. You acknowledged she worked hard to support you and your siblings as a single parent. She has had other relationships where her partners were not abusive. She has nine children. You told Ms Cidoni sometimes she was cold and distant, and you felt she turned her back on you several times. She was easily swayed by her other children and you felt she alienated you despite all the ways you tried helping her.
56When you were 13 years old, you left home because your mother made you leave over something your older brother had done. At age 16, you were couch surfing and then rented a property in Lalor with your then partner who was 25 years old. You were in this relationship for three years. She had a son who is now aged 17. You have not had contact with either of them for some time.
57When you were 20, you formed a relationship with a woman named Elise, and you lived together in six rental properties over the course of seven years. You felt the household was ‘normal’. You were working as a labourer and she was decorating cakes from home. You told Ms Cidoni you were close to her family and you deliberately stayed away from your own family ‘to reduce the chaos’. However, despite this, you were chronically anxious, and you used cannabis as a sedative. You and Elise have a daughter aged 11 years and a son who has just turned nine.
58Your children reside with Elise, but you are unsure where they live. You told Ms Cidoni you separated because of your drug use and you struggled to cope with this relationship breakdown. You said Elise has since partnered with a man known to you, and she has a child to him.
59You told Ms Cidoni your most recent period of freedom was from January to July 2020.
60Your current partner, Catherine Angwin, attended your plea hearing via WebEx. You told Ms Cidoni you had been in a six-month relationship with Catherine, which you described as being ‘tumultuous’.
61You attended Findon Primary School for Prep to Grade 6, followed by Mill Park Secondary College for Years 7 to 9, when you were expelled. You attended TAFE for Year 10 but left after a few months.
62During your early adulthood you had several jobs as a labourer. You have not worked for many years. Since being in prison, you have completed Certificates II and III in Construction, and courses in traffic control and machinery.
63You have not suffered from any major physical illness. However, throughout your childhood you were exposed to considerable trauma and neglect. You told Ms Cidoni you were an extremely anxious child, always timid, and scared. You often wet the bed and suffered encopresis.
64You told Ms Cidoni, you suffered extreme abuse and neglect when you were taken by your father. You were flogged repeatedly, and he left you at strangers’ houses for days on end. You were molested during this time by one of your father’s friends.
65You told Ms Cidoni, your father was heavily involved in drugs at the time, and you are upset at your father’s failure to take responsibility for the trauma and abuse he caused you. You said there are large parts of your childhood that you cannot remember. During the time you were with your father, he convinced you your mother was a bad person, which led you to feel confused and angry.
66In your youth, you acted out and were reportedly diagnosed with child behaviour disorders. While growing up, you struggled to feel empathy toward others.
67You told Ms Cidoni you were diagnosed with posttraumatic stress disorder and obsessive-compulsive disorder in adulthood. You also reported diagnoses of paranoid schizophrenia. You said that even when drug free, you heard voices. You saw a psychologist in Preston about eight years ago for two weeks. You said you then became avoidant. You also attended four or five sessions with a man in South Morang, but you did not connect with this counsellor.
68You said you were trialled on a number of medications for many years, including Seroquel (an antipsychotic) and Endep (an anti-depressant). You are currently prescribed Avanza (an anti-depressant) and Lyrica (for nerve pain).
69You told Ms Cidoni you began self-harming at age 16 and reported two incidents where you deliberately slit the side of your throat. You said you have always felt suicidal, and you had deliberately overdosed on pills a few times when you were younger.
70You began using cannabis at age 12 and by age 14 you were using methamphetamine (‘ice’) and heroin. This continued until you formed the relationship with Elise when you were aged 20. At this time, you were using cannabis but nothing else.
71You relapsed after your separation from Elise. Prior to your arrest you were using heroin, ice, GHB and cannabis daily. You were also drinking heavily and would typically consume a bottle of alcohol by midday.
72You were admitted to the Northern Hospital psychiatric ward twice in 2016, owing to drug induced psychosis.
73You want to attend drug rehabilitation. At the time of your assessment with Ms Cidoni, you were on 80mls of methadone. You told me in evidence you are now prescribed buprenorphine which is injected every 30 days. You told Ms Cidoni you are placed on methadone every time you go into prison, but you have not continued the dose once you are released back into the community. As a consequence, you quickly relapse.
74Ms Cidoni conducted the following psychological testing of you and made the following findings:
On the Brief Cognitive Status Exam, your results were variable, possibly owing to mental distress. Your memory was poor as was your mental control.
On the Wechsler Adult Intelligence Scale IV, your verbal comprehension index result was 81, thereby falling in the low average range. Your working memory index result was 77, thereby falling in the borderline range. It was not possible to calculate your full-scale intelligence quotient because of the test setting.
The application of the Millon Clinical Multiaxial Inventory-IV revealed ‘clear signs of a major depressive disorder overlying a characterological mix of dysphoric features’, including low self-esteem, feelings of worthlessness, a pessimistic outlook, an apprehensive fear of loss and suicidal ideation. You also report suffering from ‘a variety of symptoms that constitute a generalized anxiety disorder’. Ms Cidoni opined: ‘Extended periods of drug abuse were strongly indicated in [your] profile and are employed to moderate [your] anxieties and personal inadequacies’.
75Following your assessment with Ms Cidoni, she is of the opinion you have a long history of trauma, resulting in early and severe maladjustment that has continued for some years.
76She considers your clinical syndromes were indicated as post-traumatic stress disorder, borderline personality disorder, major depression, generalized anxiety and substance use disorder. She opined you experience transient psychotic episodes that are probably drug induced and you suffer mood fluctuations indicative of bipolar affective disorder and maladjustment following your relationship breakdown in the form of an adjustment disorder.
77Ms Cidoni considers your ‘use of illicit substances was high in the offending period and this would have intensified his instability and experiences, produced disinhibition, and periods of loss of contact with reality’.[27]
[27] Cidoni Report [69].
78Ms Cidoni opined:
There are several factors which have contributed to his behaviour and impaired functioning at the time of the offending. Considering his high symptom presentation at the assessment time, his judgment would be highly compromised and clear thinking would have been obscured where the application of Verdins should be considered. At the time of the offences, he was very reduced, and he was not in control of his behaviour.[28]
[28] Ibid [70].
79It is to be observed that ‘the assessment time’ was over nine months after you committed these offences. During most of that period you were remanded in custody. It is not clear to me how your presentation some nine months later in an entirely different life context can so definitively inform how you were mentally functioning at the time of committing the present offences.
80Moreover, on both offending occasions you engaged in conscious, voluntary and connected series of deliberate and relatively complex criminal acts which were not motiveless or inexplicable. There is no suggestion you did not understand the significance of what you were doing at all relevant times, or you misunderstood the wrongfulness of your actions. You admitted as much in cross-examination at the plea hearing.[29] There is no suggestion of a defence of mental impairment arising in your case.[30]
[29] T 12.15–13.14.
[30] See Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s 20.
81It is also to be observed, Ms Cidoni’s assessment of you lasted only two hours and was conducted via a videoconference ‘amid pandemic conditions’.[31] She recognised the limits this placed on her ability to accurately assess your level of mental functioning at the time of her assessment.[32]
[31] Cidoni Report [5].
[32] see her comment regarding her inability to complete all subtests of the WAIS-IV and derive a FSIQ at Cidoni Report [53].
82More importantly, in my opinion the fact you had taken a cocktail of illicit drugs[33] and a substantial quantity of alcohol[34] on both days prior to offending, seriously complicates the picture so rosily painted by Ms Cidoni in her report. Ms Cidoni herself recognises this in the paragraph I previously quoted.[35] This means, it is impossible to disentangle the effect your voluntary consumption of drugs and alcohol was having on you at relevant times, from the effects of any underlying mental health condition you may have been suffering.
[33] The prisoner told Ms Cidoni at the time of the offending he was using heroin, GHB, ice and cannabis. See Cidoni Report [47]. See T 7.30–9.6.
[34] The prisoner told Ms Cidoni at the time of the offending he was ‘drinking heavily and he would typically consume a bottle of alcohol before midday’. Cidoni Report [47].
[35] Above [77].
83You admitted in cross-examination at the plea hearing, after you were released on bail on 22 June 2020 for unrelated offences, you knew if you returned to using illicit drugs it was likely you would reoffend.[36]
[36] T 11.27–12.3.
84Given all these circumstances, and bearing in mind the onus is on you to satisfy me of the presence of a mitigating circumstance, I am unable to conclude that Verdins principles[37] operate to reduce your moral culpability or to moderate or eliminate general and specific deterrence as sentencing considerations in your case, at least so far as your mental state at the time of offending is concerned.[38] However, so far as you mental health at the time of sentence is concerned, I accept this justifies some moderation in the weight I give to general deterrence.[39]
[37] R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).
[38] See eg R v Shafik-Eid [2009] VSCA 217 [22]–[30] (Lasry AJA, Nettle and Redlich JJA agreeing). See in a similar context DPP v Kao [2009] VSCA 273 [35] & [42] (Weinberg JA and Coghlan AJA, Buchanan JA agreeing); R v Rogers [2017] ATCSC 67 [56]–[57] (Penfold J).
[39] See Tran v The Queen (2012) 35 VR 484, 488 [12] (Maxwell P and Neave JA).
85Ms Cidoni further opined:
His illness would be exacerbated by imprisonment as his complex state leads to marked alterations in arousal, reactivity, intrusion, and impulsivity symptoms, resulting in high anxiety. It may place you at increased risk of further emotional deterioration and would subject you to a substantially and materially greater than ordinary burden.[40]
[40] Cidoni Report [71] (emphasis added).
86I accept Verdins principle 5 is engaged in your case. The concatenation of mental health conditions from which you suffer, including heightened levels of anxiety, would make any sentence I impose weigh more heavily on you than it would on a person in normal health.
87However, I am not satisfied Verdins principle 6 is engaged in your case. That principle provides: ‘Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment’.[41] In my opinion, there is insufficient evidence before me to demonstrate your mental health had significantly deteriorated during the 392 days you had been in custody at the time of the plea hearing or that there is a ‘serious risk’ it will do so in the future. On the contrary, the fact you have remained drug and alcohol free during this period has no doubt improved your mental health. You appear to have accepted this was the case during your cross-examination at the plea hearing.[42]
[41] Verdins [32(6)].
[42] T 5.11–25.
88Moreover, whilst on remand for these offences, you are on buprenorphine administered by injection every 30 days for you drug addiction[43] and you see a psychologist for your mental health issues. You ‘work every day’ and have ‘the best job [you] can get’.[44] You have also undertaken a number of rehabilitative programs[45] and you have gained qualifications in traffic management, construction and machinery. During the evidence you gave at the plea hearing you spoke of your future plans[46] and you said, ‘now I feel stronger than ever’.[47]
[43] T 5.17–25.
[44] T 3.22–23.
[45] T 3.23–31.
[46] T 4.2–5.6, 10.13–19.
[47] T 9.30-31.
Prior Criminal History
89You have an appalling prior criminal history comprising 13 court appearances and a traffic infringement notice from 29 October 2008, when you were aged 19, until 30 July 2019. This history comprises 32 dishonesty offences, 15 driving offences, 12 offences involving the contravention of court orders or bail conditions, eight offences against the person, six offences under the Family Violence Protection Act 2008, two drug offences and one charge of possessing a controlled weapon without excuse.
90You have had the usual raft of dispositions including fines, community correction orders (‘CCO’) and terms of imprisonment ranging from 148 days, a combined sentence of 4 months’ imprisonment and a CCO, to your most recent disposition which was a total effective sentence of 18 months’ imprisonment with a 12-month non-parole period imposed on 6 May 2019 for a number of dishonesty offences, offences against the person and contravention of a family violence intervention order. You served the whole of that sentence and were not paroled. With PSD of 300 days, you were released from custody on 10 January 2020.
91You licence to drive a motor vehicle has been cancelled on numerous occasions and you have been disqualified from obtaining another licence. You have one prior conviction for dangerous driving, two prior convictions for unlicensed driving, one for driving whilst disqualified and one for failing to stop a motor vehicle on request. You have six prior convictions involving theft of a motor vehicle, two for resisting police, two for resisting an emergency worker on duty, four for committing indictable offences whilst on bail and and two for contravening a conduct condition of bail.
Mitigating Circumstances
92You pleaded guilty to these offences on 23 March 2021. Although not entered at the earliest time, bearing in mind the committal mention hearing was adjourned on five separate occasions to enable plea negotiations, the Crown accepts you nevertheless entered an early plea, which avoided the need for a contested committal and trial.
93I accept yours are relatively early pleas and they have significant utilitarian benefit, particularly in the COVID-19 environment. Any trial or trials would have been lengthy and complex, and you have spared the victims of your crimes the further trauma of having to give evidence and be cross-examined. The prosecutor fairly accepted this was so.
94The pleas also indicate your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.
95While I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you, there is insufficient evidence before me to make a finding in your favour you demonstrate true contrition and remorse for your offending conduct, beyond what is evident from the pleas themselves.[48]
[48] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
96I do not accept your counsel’s submission you are genuinely remorseful for your actions and I find you lack insight into your offending behaviour, its gravity and its effect on your victims. I found the evidence you gave on the plea hearing unimpressive and unconvincing.[49]
[49] T 2–13.
97Your counsel relied on the principles stated in Bugmy v The Queen[50] in relation to sentencing offenders who suffered profound deprivation in early childhood. In Marrah v The Queen[51] the Victorian Court of Appeal said:
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment. It may so explain the offender’s conduct that the offender’s moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending.[52]
[50] (2013) 249 CLR 571
[51] [2014] VSCA 119.
[52] Ibid [16] (Redlich and Tate JJA) (citations omitted) (original emphasis).
98I accept your counsel’s submissions you were born into disadvantaged circumstances and you were exposed to violence and drug abuse from a very early age. As Bugmy makes clear, these considerations are relevant to determining an appropriate sentences in your case, notwithstanding you have a long history of offending. I take your disadvantaged upbringing into account as part of your personal circumstances. It does, in my opinion, operate to reduce your moral culpability to a limited extent. I will also moderate to the weight I give to general and specific deterrence in sentencing you for these crimes.
99I also take into account your aboriginality. Your application to have this matter heard in the Koori Court was unsuccessful. I have had regard to the principles laid down in DPP v Terrick[53] to the extent they apply in your case, and I have taken account of the matters set out in the judgment of Eames JA in R v Fuller-Cust.[54]
[53] (2009) 24 VR 457.
[54] (2002) 6 VR 496, 520–524 [78]–[92].
100The effects of the COVID-19 pandemic are relevant to sentencing because:
(a) An offender is a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).[55]
[55] The Queen v Madex [2020] VSC 145 [52].
(b) The inherent utilitarian value of a guilty plea is greater during the pandemic.[56]
(c) The pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.[57]
(d) The pandemic can impact on visits, work and educational opportunities, depending on the number of cases of COVID-19 in the community at any given time.[58]
[56] DPP v Bourke [2020] VSC 130 [32].
[57] Brown v The Queen [2020] VSCA 60 [48].
[58] Astbury v The Queen [No 2] [2020] VSCA 158 [33] (Kaye, Niall and Weinberg JJA).
Application of Sentencing Principles
101I have considered current sentencing practice for the offences before me as informed by the decisions of the High Court of Australia in R v Kilic[59] and DPP (Vic) v Dalgliesh (a Pseudonym)[60] and the Victorian Court of Appeal decision in DPP v Zhuang.[61]
[59] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[60] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[61] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[[25] (Priest and Kyrou JJA) (‘Williams’).
102I have had regard to a number of ‘comparable cases’ I was referred to by the prosecutor[62] and your counsel.[63] I have also had regard to very recent decisions of the Victorian Court of Appeal in Russell v The Queen[64] and Kehayias v The Queen,[65] particularly in relation to the most serious charge before me of aggravated exposure and similar offences.
[62] Hutchinson v The Queen (2015) 71 MVR 8; Beasley v The Queen [2017] VSCA 154; Donnelly v The Queen [2020] VSCA 151.
[63] See ‘Comparable Cases’ dated 30 July 2021 (Ex D4) which refers to Nelson v The Queen [2020] VSCA 219 (Hargraves and T Forrest JJA); DPP v McKay & Gilbert [2020] VCC 517 (Judge Lyon) (McKay is the accused’s half-brother) and DPP v Petrie [2021] VCC 731 (Judge McInerney).
[64] [2021] VSCA 221 (Priest and Niall JJA), 12 August 2021.
[65] [2021] VSCA 261 (Niall and Sifris JJA), 17 September 2021.
103While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[66]
[66] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
104Moreover, it is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offences before me and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain any assistance from these cases, I have sought to do so in your case.
105The standard sentencing regime does not apply in this case. The aggravated offence of recklessly exposing an emergency worker to risk by driving (Charge 9) on the indictment is a ‘category 2’ offence under the Sentencing Act (1991).[67] Accordingly, a court must impose a mandatory sentence of imprisonment to be immediately served.[68] There was never any doubt this charges requires a sentence of imprisonment to be imposed. You counsel accepted this was so.
[67] See SA s 3(1) definition of ‘category 2’ offence at para (k).
[68] See SA s 5(2H).
106I note the presumption of concurrency is displaced in relation to Charge 9 and the two charges of damaging an emergency vehicle by reckless driving (Charges 5 and 7).[69]
[69] See SA ss 16(1)(j), 16(1)(k) and 16(3D).
107The fact the offences were all committed whilst you were on bail, also enlivens 16(3C) of the Sentencing Act, which means the presumption of concurrency does not apply in sentencing you for the breaching offences.
108Whilst the principle of totality is not displaced in relation to the operation of the statutory presumptions of cumulation in respect of all these charges, I must be mindful to give effect to the statutory regime as was noted by the Court of Appeal in Gordon v The Queen.[70] As Redlich JA observed:
This tension between the policy underlying s 6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s 6E should override the principle of totality. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s 6E and the principle of totality.[71]
[70] [2013] VSCA 343 [74] (Redlich JA)
[71] Ibid.
109I note Charge 9 is a rolled-up charge covering the risk your driving exposed four police officers to.[72] You fall to be sentenced for all the criminality involved in that charge. Specifically, the infringement of those four officers’ rights to personal safety. Two of the theft charges (Charge 1 and 3) and Summary Charge 8 are also rolled-up charges.
[72] See R v Jones [2004] VSCA 68, [12–[13] (Charles JA, Phillips JA and Bongiorno AJA agreeing); Reid (a pseudonym) v The Queen (2014) 42 VR 295, 308 [74] (Priest JA, Maxwell P and Whelan JA agreeing).
110All offences were committed by you whilst on bail, which is an aggravating circumstance, however I must be careful not to doubly punish you for the elements which are common to the summary offences of committing an indictable offence whilst on bail (Summary Charges 16 and 30) which relate only to the reckless exposure charge on 6 July 2020 and the theft of motor vehicle charge on 2 Jul 2020. Nonetheless, these two summary charges do involve separate criminality for which you will be punished.[73]
[73] See Zarghani v The Queen [2020] VSCA 74 [25]–[32] (Kaye, T Forrest and Osborn JJA).
111The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
112I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, so far as is possible, you are rehabilitated and reintegrated into society.
113General deterrence, denunciation and just punishment are important sentencing considerations in this case and must be given primacy in my instinctive synthesis. In light of your offending conduct, the involvement of illicit drugs and alcohol in the commission of these offence and your appalling prior criminal history, specific deterrence and protection of the community need be given real weight. I assess your prospects of rehabilitation as being guarded. Much will depend on your ability to remain drug free following your release from custody. I note there are protective factors present in your case.
114I consider the imposition of a total effective sentence of imprisonment with a non-parole period is necessary to properly achieve the purposes for which this sentence is imposed.[74]
[74] See Sentencing Act 1991 s 5(4C).
115I accept totality it an important consideration in sentencing given the large number of charges and the overlapping nature of the offences. I must also avoid the imposition of a crushing sentence on you. These considerations will be particularly reflected in my orders for cumulation.
116As of today (not including today) you have accrued 494 days pre-sentence detention, since your arrest on 6 July 2020. I will make the appropriate declaration in your case.
Mr McKay
On the indictment charges you are sentenced as follows:
On Charge 1 (theft of a motor vehicle and a wallet) you are convicted and sentenced to imprisonment for 6 months. All licences and permits you hold under the Road Safety Act 1986 are cancelled and you are disqualified for 6 months.
On Charge 2 (dangerous driving while pursued by police) you are convicted and sentenced to imprisonment for 1 year. All licences and permits you hold under the Road Safety Act 1986 are cancelled and you are disqualified for I year.
On Charge 3 (theft from shop) you are convicted and sentenced to imprisonment for 2 months.
On Charge 4 (theft of a motor vehicle) you are convicted and sentenced to imprisonment for 8 months. All licences and permits you hold under the Road Safety Act 1986 are cancelled and you are disqualified for 6 months.
On Charge 5 (damaging an emergency service vehicle by reckless driving) you are convicted and sentenced to imprisonment for 1 year.
On Charge 6 (dangerous driving whilst pursued by police) you are convicted and sentenced to imprisonment for 1 year. All licences and permits you hold under the Road Safety Act 1986 are cancelled and you are disqualified for 1 year.
On Charge 7 (damaging an emergency service vehicle by reckless driving) you are convicted and sentenced to imprisonment for 15 months.
On Charge 8 (theft of petrol) you are convicted and sentenced to imprisonment for 2 months.
On Charge 9 (aggravated offence of recklessly exposing an emergency worker to risk by driving) you are convicted and sentenced to imprisonment for 3 years.
On Charge 10 (theft of a motor vehicle) you are convicted and sentenced to imprisonment for 8 months. All licences and permits you hold under the Road Safety Act 1986 are cancelled and you are disqualified for 6 months.
On Charge 11 (reckless conduct endangering serious injury) you are convicted and sentenced to imprisonment for 12 months.
On Charge 12 (theft from shop) you are convicted and sentenced to imprisonment for 1 month.
In relation to the related summary offences you are sentenced as follows:
On Summary Charge 4 (drive a motor vehicle when directed to stop) you are convicted and sentenced to imprisonment for 3 months. All licences and permits you hold under the Road Safety Act 1986 are cancelled and you are disqualified for 1 year.
On Summary Charge 8 (failure to stop motor vehicle after accident damaging property) you are convicted and sentenced to imprisonment for 7 days.
On Summary Charge 13 (unlicensed driving) you are convicted and sentenced to imprisonment for 1 month.
On Summary Charge 14 (refuse to undergo a preliminary breath when required) you are convicted and sentenced to imprisonment for 1 month. All licences and permits you hold under the Road Safety Act 1986 are cancelled and you are disqualified for 4 years.
On Summary Charge 15 (contravene conduct condition of bail) you are convicted and sentenced to imprisonment for 7 days.
On Summary Charge 16 (commit indictable offence whilst on bail) you are convicted and sentenced to imprisonment for 1 month.
On Summary Charge 29 (unlicensed driving) you are convicted and sentenced to imprisonment for 1 month.
On Summary Charge 30 (contravene conduct condition of bail) you are convicted and sentenced to imprisonment for 7 days.
On Summary Charge 31 (commit indictable offence whilst on bail) you are convicted and sentenced to imprisonment for 1 month.)
On Summary Charge 32 (failure to stop motor vehicle after accident damaging property) you are convicted and sentenced to imprisonment for 7 days.
The sentence of 3 years’ imprisonment on Charge 9 will be the base sentence.
I direct that 3 months of the sentence imposed on Charge 1, 6 months of the sentence imposed on Charge 2, 14 days of the sentence imposed on Charges 3, 2 months of the sentence imposed on Charge 4, 4 months of the sentence imposed on Charge 5, 6 months of the sentence imposed on Charge 6, 5 months of the sentence imposed on Charge 7, 14 days of the sentence imposed on Charge 8, 3 months of the sentence imposed on Charge 10, 4 months of the sentence imposed on Charge 11, 7 days of the sentence imposed on Charge 12, 1 month of the sentence imposed on Summary Charge 4, 2 days of the sentence imposed on Summary Charge 8, 7 days of the sentence imposed on Summary Charge 13, 7 days of the sentence imposed on Summary Charge 14, 7 days of the sentence imposed on Summary Charge 29, 2 days of the sentence imposed on Summary Charge 32 are to be served cumulatively on the sentence imposed on Charge 9 and on each other. The sentences imposed on Summary Charges 15, 16, 30 and 31 are to be served concurrently with the sentence imposed on Charge 9 and on each other.
This makes a total effective sentence of 3 years’ and 34 months’ and 60 days’ imprisonment. (effectively 6 years)
I order that you serve a minimum of 4 years’ imprisonment before becoming eligible for parole.
I declare pre-sentence detention in your case is 494 days, not including this day, and I direct that declaration be entered into the records of the Court.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the total effective sentence I would have imposed on you but for your pleas of guilty would have been 8 years’ imprisonment with a minimum non-parole period of 6 years’ imprisonment.
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