Director of Public Prosecutions v McKay&Anor
[2020] VCC 517
•29 April 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-02367
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARCY MCKAY MARK GILBERT |
---
| JUDGE: | HIS HONOUR JUDGE LYON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 April 2020 |
| DATE OF SENTENCE: | 29 April 2020 |
| CASE MAY BE CITED AS: | DPP v McKay&Anor |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 517 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Hutton | Office of Public Prosecutions |
| For Accused McKay | Mr C. Thomson | Stary Norton Halphen |
| For Accused Gilbert | Mr B. Newton | Chester Metcalfe |
HIS HONOUR:
1Darcy McKay and Mark Gilbert, you have each pleaded guilty to the following offences which carry the following maximum penalties. Mr McKay, you pleaded guilty to four charges of theft. Each count of theft carries a maximum penalty of 10 years' imprisonment.
Darcy McKay
Charge Nos. Charge Max Penalty 4 x
(Charges 3, 7*, 8, 14)
Theft 10 years 2 x
(Charges 4, 12)
Damaging Property 10 years 1 x
(Charge 5)
Obtain Property by Deception 10 years 1 x
(Charge 6)
Burglary 10 years 2 x
(Charges 10*, 15*)
Handle Stolen Goods 15 years 1 x
(Charge 11)
Conduct Endangering Persons 5 years 1 x
(Charge 13*)
Aggravated Offence of Recklessly Expose an Emergency Worker to Risk by Driving 10 years 2 x
(Sum Charges 53, 56)
Drive in a Manner Dangerous 2 years Mark Gilbert
Charge Nos. Charge Max Penalty 4 x
(Charges 1, 2, 7*, 9)
Theft 10 years 2 x
(Charges 10*, 15*)
Handle Stolen Goods 15 years 1 x
(Charge 13*)
Aggravated Offence of Recklessly Expose an Emergency Worker to Risk by Driving 10 years *Joint Charges: 7, 10, 13, 15
2The charge of aggravated offence of recklessly exposing an emergency worker to risk by driving, is a Category 2 offence. As such, this charge carries a mandatory period of imprisonment, except in very limited circumstances.
3Moreover, a term of imprisonment for this charge must be served cumulatively unless otherwise directed by the court.
4Finally in this respect, you both face a mandatory licence cancellation for a minimum of two years in respect to charges of theft of a motor vehicle, aggravated offence of recklessly exposing an emergency work to risk by driving and for dangerous driving in your case, Mr McKay.
5In addition, you have each admitted extensive prior convictions. I shall return to the significance of these in both your cases later in these sentencing remarks.
6The Crown tendered a summary of prosecution opening on plea as Exhibit A. The summary extends over 13 pages and essentially amounts to a spree of car thefts and associated crimes by each of you individually and jointly. I do not intend to say much about many of these crimes, but I will focus on the most serious aspects; that is, your driving, Mr McKay, and together, your conduct in exposing four on-duty police officers, who were trying to stop your reckless actions, to the danger of serious injury through your driving of the stolen Porsche.
7Mr Gilbert, you have pleaded guilty to stealing four different cars (Charges 1, 2, 7 and 9) from various locations on various dates. You used each of these cars for your own means.
8You have also pleaded guilty to two charges of handling stolen goods. Charge 10 relates to handling car keys and personal papers. Charge 15 relates to using stolen registration plates on the Porsche.
9As I have said, I will return to Charge 13 in more detail shortly.
10Mr McKay, you have pleaded guilty to stealing four different cars on various dates and from various locations to use for your own means (Charges 3, 7, 8, 14).
11Charge 8 relates to the theft of a Mercedes-Benz from a Caltex service station in Pascoe Vale on 4 April 2018. The owner of the Mercedes had gone inside the petrol station to pay for the fuel and had left the keys inside the car. To that point you had been driving a stolen Porsche (Charge 7). You left the Porsche at the service station and drove away in the Mercedes. Between about 1:30 and 2 pm on that day the Mercedes was seen being driven by you, with a male in the passenger seat. At various locations around Mill Park and beyond, you failed to give way to an oncoming vehicle, you drove through red lights on at least three occasions, you weaved through traffic lanes and into the emergency lane on the Metropolitan Ring Road in order to pass slower moving vehicles. Your speed was checked at times in excess of 150 kilometres an hour in a 100 kilometre an hour zone. Summary offence 53 of dangerous driving relates to your driving on that occasion.
12Charge 5 relates to the use of a stolen credit card which was used to purchase about $120 worth of cigarettes and groceries from a convenience store.
13Charges 4 and 12 relate to property damage caused by you. Charge 4 is an instance where you drove off from a petrol pump leaving the pump in the car fuel tank and thereby damaging the petrol pump. Charge 12 relates to damage to the stolen Porsche.
14Charges 10 and 15 are the charges of handle stolen goods. I have summarised those in respect to Mr Gilbert and you share those charges with him.
15Summary Charge 56, dangerous driving, relates to your driving on 5 April 2018. It relates to multiple episodes of driving. At 11:46 am you were seen by police to be again driving the stolen Porsche. You drove along Mahoneys Road, Thomastown at excessive speed. At 12:36 pm you were driving through Bundoora and Greensborough. You narrowly missed a cyclist turning into Alma Road. A police expert analysed film taken of your driving and calculated your car to be travelling at an average of about 141 kilometres an hour along the Greensborough Bypass, and at about 125 kilometres an hour in Grimshaw Street, Greensborough.
16It is necessary to quote extensively and in detail from the prosecution opening in order to convey the gravity of the next aspect of your driving.
17Shortly after missing the cyclist, you turned the Porsche into the underground car park of a supermarket. The police were following you and used a police car to block the exit before searching on foot for you both and the Porsche.
18When the police found you, you, Mr McKay, were in the driver’s seat wiping the dash and steering wheel with a cloth. You, Mr Gilbert, were standing directly in front of the car. Police shouted at you, Mr Gilbert, to get on the ground and for you, Mr McKay, to get out of the car. Instead you, Mr Gilbert, got back into the car and you, Mr McKay, started driving the car with the engine revving loudly and the tyres spinning. Mr Gilbert was yelling, “Go go go”.
19DSC Davies was standing between a parked car and the stolen Porsche and was trying to remove the ignition keys. The car reversed back and forward. Davies used the police baton to smash the window. You, Mr McKay, drove the stolen Porsche towards the exit of the car park. You crashed the Porsche past the police car that was blocking the exit, damaging both cars.
20DSC Parfitt ran towards the Porsche and was on the passenger side directly next to it. The Porsche was moving forwards and backwards with the tyres spinning. The Porsche narrowly missed her as you reversed into a concrete wall and drove off. Detective Parfitt made multiple demands for you to get out of the vehicle, which you both ignored.
21All of this conduct constitutes part of Charge 56 of dangerous driving.
22The next charge of conduct endangering persons of serious injury (Charge 11), which you face alone Mr McKay, concerns your driving after leaving the supermarket car park.
23After you left the car park, you travelled at fast speed towards Grimshaw Street. You mounted the gutter and drove onto the footpath; driving around police cars, crossing two lanes of traffic and continuing west along Grimshaw Street at a speed estimated at 130 to 140 kilometres an hour. The posted speed limit in this area is 60 kilometres an hour.
24The Porsche then ran a red light causing other road users to stop to avoid a collision. As you travelled along the Greensborough bypass, your speed was monitored to be about 140 kilometres an hour in an 80 kilometre an hour zone. You continued driving at high speeds through Greensborough, Rosanna, Bundoora and into Preston.
25As you drove along Tyler Street, Preston, on the incorrect side of the road, your speed was estimated at 113 kilometres an hour in a 60 kilometres an hour zone
26The Porsche collided with a Toyota car on Albert Street, Preston. You hit the Toyota driver’s front quarter panel so hard that the panel came off that vehicle.
27You continued along Bell Street, Preston at speeds between 130 and 140 kilometres an hour in an 80 kilometres an hour zone.
28I turn now to consider your offending at the Northland shopping centre car park. After you entered the car park, several police cars followed the Porsche into that car park and managed to box you in. Mr McKay, you were still driving and you, Mr Gilbert, were still in the front passenger seat.
29In an effort to evade apprehension, you reversed the stolen Porsche into a police car and rammed it backwards and forwards into police vehicles continuously. Much of your driving in this instance was captured on CCTV footage from the car park. In all, you rammed police vehicles about 28 times over a period lasting more than three minutes.
30Throughout this whole period, police were directing you two to get out of the stolen car. As Mr McKay drove, you, Mr Gilbert, were shouting, ‘Go go go’.
31Detective Kelly moved between the Porsche and a police vehicle. At this point the Porsche rammed the police vehicle which in turn struck Detective Kelly. She received bruising to her leg.
32Detective Boughton received a minor injury to her hand when she moved in between the Porsche and a police vehicle and struck at you, Mr McKay, whilst the car was still in motion.
33Detective McKissock tried to reach in to remove the ignition keys but was repelled by you, Mr McKay. McKissock punched at your head three times but could not get hold of the keys. You drove forward, driving over Detective McKissick’s foot. With that, the detective retreated in order to avoid further or more serious injury.
34Detective Petch tried to open the driver’s door but it was locked. As the detective stood there striking the front driver’s window, she was ordering you to get out of the vehicle but you kept driving forward and backwards and collided with the police car.
35I have already referred to Charge 12 - the damage to the Porsche. It is apparent that the stolen Porsche was extensively damaged.
36Soon after this, you were both arrested. Police used OC spray to contain you. Mr Gilbert, you had a seizure as a result of the use of the spray. You could not be interviewed because of your condition.
37Mr McKay, you were interviewed by police but you remained mute.
38You were both remanded into custody and you have now spent 755 days in pre-sentence detention, excluding today.
Objective Gravity and Moral Culpability for your offending
39I turn now to consider the objective gravity of your offending and your moral culpability for your offending.
40The casual and constant way in which you both stole cars as a convenient means of transport makes all of your crimes and theft of cars brazen and serious. They also demonstrate that your moral culpability is high – you thought nothing of your actions in taking a car. This is especially so in light of your prior convictions for this same type of offending.
41The instances of dangerous driving, reckless conduct endangering serious injury and recklessly exposing emergency workers to risk by driving, are all very serious examples of each of these types of offending.
42Mr McKay, the word “dangerous” is hardly adequate to summarise your driving in respect to Charges 53 and 56. The speeds at which you drove the Porsche through suburban areas in normal daytime traffic showed a complete contempt for notions of road safety.
43Further, your driving which constituted the charge of reckless conduct endangering persons of serious injury, is constituted by driving on the footpath, on the wrong side of the road, and at extreme speed, which put the road users proximate to you in danger of serious injury. Your recklessness behind the wheel of a stolen car demonstrates a disdain for those who you put in harm's way.
44You admitted to the psychologist, Peter Hanley, that your driving was drug fuelled and that your perception of the seriousness of your conduct was marred. You told the psychologist that you had consumed the drug GHB before being pursued by police; that you felt that it was like a dream and it led to a state of not caring for your actions. The combination of drugs, driving and extreme speed on our suburban streets is to be deplored and will be met by severe punishment.
45Finally in this respect, I turn to consider the conduct of you both when confronted by police at the Northland car park.
46Mr McKay, it shows that when boxed in, you used a stolen car as a weapon and as a battering ram. You tried to batter your way out of your lawful arrest.
47You knew that there were numerous police standing right next to your car. It must have been apparent to you that your attempts at escape were futile. But instead, you kept slamming front and back into police cars and putting those police, who were doing their lawful duty in trying to protect the community from your actions, at risk.
48The fact that none of Kelly, Petch, McKissock and Boughton were seriously injured is no credit to either of you. It stands to the credit of the Victoria Police, and the bravery of each one of those officers, as with Davies and Parfitt earlier, that they put aside considerations of personal safety in an effort to stop you two. I commend each of those officers for their bravery.
49As for you, Mr Gilbert, your counsel made the submission that the objective gravity of your role in this offence was lessened by the fact that you were the passenger and not the driver. That is true, but as the passenger in the car, sitting next to the driver, you were urging Mr McKay on. You were right there, at ground zero. Not for the first time on that day, you were heard to say, “go go go”. I can only conclude that you were aware of the police cars blocking your escape, of the officers trying to affect your arrest, and yet still, you urged Mr McKay on.
50I take into account that the Crown concedes in respect of this charge that you played a lesser role than Mr McKay. I will therefore make a difference in the sentence I impose upon you for this charge to that I impose on Mr McKay.
51At this point I refer to the victim impact statement of Nicole Yates. Ms Yates was present with her young children in the Northland car park and witnessed your driving and your attempts at escape. Ms Yates did not want her victim impact statement read, and I respect her privacy. It is sufficient to say that your actions, the noise of the car, the smell of burning rubber and the overheating engine created a terrifying scenario for those present.
52Mr McKay, you have extensive prior convictions for stealing cars and for driving offences. In particular, you have two prior convictions for reckless conduct endangering serious injury and a previous conviction for resisting an emergency worker on duty. Your moral culpability for this offending is very high.
53Mr Gilbert, you also have extensive prior convictions for stealing cars and for driving offences. You appear to have three prior convictions for reckless conduct endangering serious injury. Your moral culpability for this offending is also very high.
54Your conduct must be met by principles of general and specific deterrence, denunciation and a measure of protection of the community.
55The differences in the overall sentences I impose upon each of you must reflect the fact that you, Mr McKay, are charged with more offences and that you are charged alone with reckless conduct. Nevertheless, your offending calls for stern punishment in light of the objective gravity and your moral culpability for your offending.
56I turn now to consider your personal circumstances.
Personal Circumstances
Darcy McKay
57Mr McKay, you are 28 years of age and you were born on 21 August 1991. You are one of nine siblings and grew up in Mill Park. Your father left when you were a baby. Your mother’s new partner was violent towards you and to her.
58You describe your childhood years as chaotic and grossly disrupted by your mother’s alcoholism, and drug taking. Your stepfather was continually violent towards you.
59Unsurprisingly your schooling was tremendously disrupted because of your behavioural issues. The forensic psychologist, Peter Hanley, assessed you on 3 March 2020 and concluded that you are;
“A young man with significant behavioural problems stemming from your dysfunctional upbringing”.
60When you were about 14 years of age, your mother sent you to live with your father in Lakes Entrance for a period of about three months. In that time, your father was physically violent towards you and you were sexually abused by a friend of your father for a period of about six weeks. The abuse is documented on your Justice file.
61After you left your father’s place, you did not return home but in fact effectively couch surfed for about seven years. You had used drugs before this point, and had been introduced to marijuana by your mother when you were about 12 it seems, but your drug use over this period escalated and became continuous.
62You worked as both a concreter and as a roof tiler between the ages of 17 and 21. Eventually, however, your drug use adversely affected your ability to work and you have not worked since you were 21.
63On your own assessment, you have spent something less than a year outside prison since your 20th birthday. Your prior convictions are extensive and continuous. Your criminal history shows that in September 2017 after completing 22 months on remand, you were placed on a CCO for 18 months for burglary, dishonesty offences, driving offences, resisting an emergency worker on duty, reckless conduct endangering serious injury and numerous other charges. This offending occurred only six or seven months later, and breaches the CCO.
64When you were 23, you were involved in a debilitating car accident. As a result, you suffer a back injury which has left you with ongoing and considerable numbness (with consequential difficulties in your lower body) and constant pain.
65You expect to receive a TAC compensation payout. Upon your release from prison, you hope to use the proceeds to buy a truck and plant to assist your brother's concreting business and to go into business with him. You would also like to help your mother fix her house. More immediately, you wish to enter and pay for an inpatient drug rehabilitation program upon your release to give you a better chance of achieving abstinence.
66You have used your time on remand in a positive and constructive manner. The certificates of completion provided to me give insight into your attempts to commence your rehabilitation. Instead of simply completing vocational courses, you have focused on insightful and self-reflective courses. Most significantly, you applied for, and were accepted into, the Moroka program at Ravenhall. The Moroka program is a 12-week voluntary therapeutic program, which aims to provide participants with skills and resources to manage challenging behaviour. In addition, you received one-on-one psychological counselling which you found of great benefit. It is apparent that you place very great store in the benefit you received from completing the Moroka program. You consider that it has already provided a foundation upon which you can build once you are released back into the community.
67You have since returned from Ravenhall to Barwon prison as a consequence of finishing the Moroka program. In your evidence before me, it is apparent that your conditions in prison are both restricted and difficult at the present time during the coronavirus pandemic. You are subjected to 24-hour a day lockdown and you cannot see either your physiotherapist or specialist for your back problems.
68You told me of the support you have from friends and I have read the references your friends have supplied. I have taken into account the lesson that you feel you have learnt from the recent death of one of your very close friends from a drug overdose. You have the offer of employment on your release from prison.
69It appears that you have a reasonable pro-social support network for when you are eventually released. You also have an offer of housing from your former stepfather.
70In your evidence you told me that you never intended to hurt or endanger people and that you can now see the other side of the coin. You told me that you wish to apologise to the police officers and that you have changed. Under cross examination you said “I’m a different person to the person who offended in the Porsche”.
71The psychological report of Peter Hanley outlines in considerable detail your family history, upbringing and your drug use. Mr Hanley concludes that you meet the diagnostic criteria for antisocial personality disorder, borderline personality disorder and adjustment disorder with mixed disturbance of emotions and conduct. Mr Hanley considers that you meet the criteria for stimulant use disorder and sedative, hypnotic or anxiolytic disorder (severe) (in sustained remission in a controlled environment). Mr Hanley reached these conclusions against your previous diagnosis of obsessive-compulsive disorder. Mr Hanley states that your:
“Personality dysfunction is deeply entrenched and it is likely that [you] will require ongoing management and containment of [your] behaviour for the foreseeable future. [You] require clear structures in place to provide limits to [your] behaviour and intense personal support to manage the instability of [your] emotions”.
72Mr Hanley considers that you are a high risk of recidivism. However, Mr Hanley considers there is currently a window of opportunity for effective rehabilitation presented by your age, your recent participation in rehabilitative programs, and your expressed desire to move towards a pro-social involvement in the community.
Mark Gilbert
73Mr Gilbert, you are 29 years of age and were born on 30 May 1990. Your mother was 16 and your father was 18 years old when you were born.
74Your counsel, Mr Newton, was meticulous in providing supporting documentation for all that he outlined about your childhood and upbringing. It is no overstatement to say that your childhood was profoundly disadvantaged. Your childhood was characterised by poverty, emotional and physical brutality towards you and your mother by your father, sustained parental neglect by both parents and then a turnaround where your father welcomed you as a peer into his world of drug-taking, criminal offending and antisocial behaviour.
75I shall only recite a couple of examples of what I am referring to. The first is that in 1996 DHS Child Protection noted that your father punched you to the head and kicked your thighs because he did not like the way that you had brushed your hair. The same report notes that you appear to have been subjected to significant trauma through your childhood, given your exposure to physical and mental abuse. You were six years old when that report was written.
76As I have stated, you were neglected. Your father left you in a cemetery one night. You slept on the ground outside rather than walking through the cemetery at night. Your mother was also highly neglectful of you during your childhood.
77Although you enjoyed school and sport, your father interfered, disrupted and diverted you from both. He introduced you to drugs from the age of about 12 and, on one occasion, injected you with amphetamines before an important football game.
78Not surprisingly, you dropped out of school halfway through Year 8 on account of your behavioural issues and drugtaking. At age 14, your father introduced you to heroin and used to inject you with that drug. You started injecting yourself with heroin and then methamphetamine from the age of 15.
79Your father also introduced you to criminal offending and it seems the two of you committed crimes together. As he turned from a violent aggressor against you as a young child, he then became your mate, but only in this negative, destructive way.
80The influence of your father has somewhat diminished as he was deported from Australia a number of years ago. You have had no contact with him since.
81You commenced a relationship with a teenaged girl when you were 13 years old. You remained together for 12 years. You have four children from that relationship aged between 7 and 12 years. The children reside with their mother and you have had no face-to-face contact with them for the last two years, but your oldest daughter has been writing to you whilst you are in custody.
82In recent years you have continued to improve your relationship with your mother and with your sister.
83The psychological report of Pamela Matthews states that you present with some symptoms of post-traumatic stress disorder as a result of the ongoing abuse you suffered as a child. Ms Matthews considers that you now have some insight into your drug problem and its influence over your offending behaviour. Ms Matthews considers that the greater need, however, is to address your earlier life struggles in treatment, rather than therapy focusing solely on your current emotional state and your drug abuse issues.
84You have a long and continuous criminal history. You had only been released from prison in late January 2018 for offences including theft of motor vehicle and committing an offence whilst on bail.
85You still present as a high risk of reoffending, but the fact that you have insight into your drug use and the removal (albeit some time before the commission of these offences) of the negative influence of your father from your life, places you on a better footing to rehabilitate from your offending.
86You have used your time in prison constructively. You have returned mostly clean urine samples and you have completed a number of courses whilst you have been on remand
Submissions
87I turn now to consider the submissions made by each of your counsel. Mr Thomson, on your behalf Mr McKay, submitted that the following principal factors should mitigate your sentence:
·plea of guilty to many charges at an early opportunity;
·notwithstanding your prior convictions, you suffer from no mental illness or cognitive impairment and you are committed to a plan for your rehabilitation;
·you used your time on remand constructively, completing courses and also the Moroka program;
·you are committed to turn your life around and you have support from friends and relatives together with offers of accommodation and employment available;
·your two years on remand have been difficult as you were in protection; and
·with the outbreak of the coronavirus pandemic, your movements have been considerably restricted and you are now enduring a 23 hour a day lockdown. You have more to fear from the pandemic than others if it reaches the prisons, which it has not, because you suffer from asthma.
88Mr Gilbert, your counsel, Mr Newton, submitted the following factors should mitigate your sentence:
·your profoundly disadvantaged childhood;
·the plea of guilty to offending; and
·you still have reasonable prospects for your rehabilitation and the community interest lies in enhancing those prospects.
89The Crown submits:
·the pleas of guilty each carry utilitarian benefit;
·both of you remain high risks of reoffending. As such, the Crown submits that in both cases, your prospects for rehabilitation are poor to guarded;
·although the cases (such as Bugmy) recognise the effect of a profoundly deprived childhood on the sentencing process, you, Mr Gilbert, are now in your late 20s. As such, the mitigatory effect of your childhood should start to lessen;
·there is no case of coronavirus within the Victorian prison system;
·specific deterrence is a significant factor in both cases; and, finally
·the main offence, Charge 13, occurred over an extended period of time and requires stern punishment.
90In the case of you, Mr McKay, I am prepared to accept the mitigating effect of your plea of guilty and I do accept that you are presently committed to a plan for your rehabilitation. I recognise also that you appear to have the support of friends and relatives who will provide a pro-social platform for you on your reintegration back into the community.
91I can only assess your prospects for your rehabilitation as being guarded at this time. Whilst you have made a genuine attempt to use your time in prison constructively, it remains a controlled environment. The true test of your determination will come once you are released back into the community.
92Moreover, in this case I must also keep in perspective the sentencing balance. The principles of deterrence, denunciation and protection of the community dominate the sentencing consideration in this case. I will take into account the factors mitigating your sentence but they cannot take dominance over the other factors.
93Mr Gilbert, I consider that your sentence must be mitigated by your profoundly disadvantaged childhood. In this respect I have considered and will apply the principles outlined in the case of Marrah. As the court said in that case, and referring to another High Court case of Bugmy, the effects of such social disadvantage do not generally diminish over the passage of time and are likely to have profound and lasting consequences. However, as the case of Marrah also says, your social disadvantage does not provide an excuse for your offending. Whilst I must give it weight, I bear in mind the importance of protecting the community and reflecting the community disapproval of your offending.
94I likewise take into account your plea of guilty.
95Like Mr McKay, I can only assess your prospects of rehabilitation as being guarded at the present time. As I said to Mr McKay, I recognise that you have made considerable efforts to commence your rehabilitation whilst in prison, but the real work to be done will have to be done upon your release.
96For both of you, I take into account the effects of the COVID-19 pandemic on your time in prison. In the first place, the virus has led to the suspension of visits. I acknowledge the strain this causes, as you, like many in the prison system, rely upon the direct support of family members and friends who come to visit. Moreover, it is apparent that making telephone calls is now more difficult, and at times a source of tension between prisoners. Secondly, I am aware that work and movement have been considerably restricted. Many (if not all) educational and vocational courses have been suspended. It is difficult to meaningfully and constructively fill your time without these avenues. I appreciate all of this makes your time in custody more difficult
97Finally, I acknowledge the need to take into account the principle of totality and, so far as you share charges in common, the principle of parity.
Sentences
98I move now to the sentences that I impose:
Darcy McKay
Charge Nos. Charge Max Penalty Sentence Cumulation 3 Theft 10 years 12 months 1 month 7 Theft 10 years 18 months 6 months 8 Theft 10 years 12 months 1 month 14 Theft 10 years 12 months 1 month 4 Damaging Property 10 years 12 months 2 months 12 Damage 10 years 12 months 2 months 5 Obtain Property by Deception 10 years 6 months - 6 Burglary 10 years 15 months 3 months 10* Handle Stolen Goods 15 years 6 months 1 month 15 Handle 15 years 6 months 1 month 11 Conduct Endangering Persons 5 years 24 months 9 months 13* Aggravated Offence of Recklessly Expose an Emergency Worker to Risk by Driving 10 years 39 months Base 53 Manner Dangerous 2 years 12 months 3 months 56 Manner Dangerous 2 years 12 months 3 months TES 72 months NPP 46 months PSD 755 days 6AAA 7 years 10 months / 5 years 3 months NPP 99That means the total effective sentence is one of 72 months or six years. I order a non-parole period of 46 months' be served before you are eligible for parole.
100I have previously made an order in relation to your licence from 8 April that stand. I declare the period of 755 days pre-sentence detention reckoned as already served.
101But for the plea of guilty, I would have sentenced you to a term of 7 years and 10 months with 5 years and 3 months to serve.
Mark Gilbert
Charge Nos. Charge Max Penalty Sentence Cumulation 1 Theft 10 years 12 months 1 month 2 Theft 10 years 12 months 1 month 7* Theft 10 years 18 months 6 months 9 Theft 10 years 12 months 1 month 10*, Handle Stolen Goods 15 years 6 months 1 month 15* Handle Stolen Goods 15 years 6 months 1 month 13*
Aggravated Offence of Recklessly Expose an Emergency Worker to Risk by Driving 10 years
36
Base
TES 47 months NPP 32 months PSD 755 days 6AAA 6 years 3 months / 4 years 1 month NPP *Joint Charges: 7, 10, 13, 15
102That leads to a total effective sentence of 47 months. I order that you serve a non-parole period of 32 months before you are eligible for parole.
103I declare the period of 755 days pre-sentence detention reckoned as already served, that is, excluding today. I have made a licence order already.
104But for your plea of guilty, I would have sentenced you to six years' and three months with four years and one month to serve before being eligible for parole.
105Now, Mr Hutton, can you turn your mike back on please?
106MR HUTTON: It is on now, Your Honour.
107HIS HONOUR: Thank you. There is a disposal order and court order to be made and there are also two compensation orders. Are they the orders you seek?
108MR HUTTON: Yes, Your Honour. I understand they are all consented to now.
109HIS HONOUR: All right, thank you. Mr Newton, can I go to you first. Is that the case, that all orders are consented to?
110MR NEWTON: Correct, Your Honour.
111HIS HONOUR: Thank you. Mr Thomson, is that correct?
112MR THOMSON: That is correct.
113HIS HONOUR: Thank you. I will make those orders in chambers.
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