Director of Public Prosecutions v Murray

[2019] VCC 1044

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02404

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL JAYDEN MURRAY

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2019
DATE OF SENTENCE:	13 June 2019
CASE MAY BE CITED AS:	DPP v Murray
MEDIUM NEUTRAL CITATION:	[2019] VCC 1044

REASONS FOR SENTENCE
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Subject: Criminal law – sentence
Catchwords: Pleaded guilty to 1 charge  negligently deal with proceeds of crime – 1 charge  recklessly expose emergency worker risk by driving – 1 charge criminal damage – summary charges – exceed prescribed concentration of drugs –  drive in manner dangerous – unlicenced driving – use unregistered motor vehicle -  use vehicle display number plates other than issued x 3 – Indigenous - Koori court -  driving towards  three  police cars -  evasive driving required by police  –six  police officers put at risk -  speeding – substance affected – 28 years of age – poor education -  father of  two small children -  mild brain injury - depression - panic symptoms – appalling driving record – good prospects for rehabilitation.
Sentence: Total effective sentence  1 year imprisonment - CCO 2 years -  aggregate fine $1500

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Duckett	OPP
For the Accused	Dr FitzGerald	Doogue O’Brien George

HER HONOUR: 

1Michael Jayden Murray, you have pleaded guilty to a total of nine charges arising out of one incident on 20 July 2018, when you were the unlicensed driver of a Ford car towing a stolen trailer.  As a result of your driving that night, you were charged with three indictable offences and six summary offences.  The three indictable offences, are negligently dealing with the proceeds of crime, which was the trailer, recklessly exposing an emergency worker to risk by driving and criminal damage.

2The maximum penalties for these charges are five years' imprisonment for Charge 1 and ten years for each of Charges 2 and 3.  The summary offences are driving whilst exceeding the prescribed concentration of a drug, dangerous driving, unlicensed driving, using incorrect registration plates and driving an unregistered vehicle.  For ease of reference they are described in the prosecution summary as charges numbered 1, 4, 6, 26, 27 and 22. 

3For the summary charges, the maximum penalties are as follows.  For Charge 1, a fine of 12 penalty units or 60 for a second offence or 120 for a subsequent offence.  For Charge 4, a fine of 240 penalty units or two years' imprisonment or both.  For Charge 6, a fine of 60 penalty units of imprisonment for six months.  For Charges 26 and 27, a fine of 10 penalty units.  For Charge 22, a fine of 25 penalty units or 50 for a subsequent offence. 

CIRCUMSTANCES OF OFFENDING

4The offences occurred on 20 July 2018 in the early hours of that morning.  The details are set out in the prosecution summary as follows.  First Constable Bartolo and Constable Evans were on patrol duties in a marked sedan in the Melton area.  At about 2.34 am, they saw you driving a white Ford, towing a silver tandem trailer with New South Wales number plates travelling east on Beatty’s Road, Plumpton.  This gives rise to two of the summary charges, Charge 6, unlicensed driving and Charge 22, driving an unregistered vehicle.

5You passed the police car travelling in the opposite direction at a speed of approximately 120 kilometres per hour in a 100 kilometre per hour zone.  First Constable Bartolo turned the police car around and followed you.  As he followed you towards the roundabout of Plumpton Road and Melton Highway, he saw your vehicle traveling in the middle of the road over the white broken lane dividers and accelerating.  The only other vehicle on the road at the time was a taxi which entered the roundabout at the same time as the police car.

6Bartolo then followed your vehicle into Holden Road where it travelled at between 125 and 130 kilometres per hour for about 300 metres and then slowed dramatically.  Bartolo noted the registration numbers of the car and the trailer and began to communicate the details via the police radio for checking.  This gives rise to Charges 26 and 27, using false numberplates. 

7As he did this, the Ford's reversing lights came on and it started to reverse at the police car at a fast speed, forcing Bartolo to put the car into reverse. The Ford's trailer narrowly missed the police car.  This is described in the prosecution summary as the first incident. 

8As Bartolo was radioing to police communications, 'That he tried to ram him', the Ford accelerated away along Holden Road.  Bartolo asked additional police units to assist intercepting the vehicle and then drove after it.  The Ford continued driving and then turned onto an unnamed dirt track, while Bartolo followed it.  By this time, the airwing was overhead and was observing the Ford.  The Ford continued for another kilometre and a half and then stopped.  It then performed a three-point turn, accelerating towards the police car in which Bartolo and Evans were traveling.

9Bartolo was forced to take evasive action and swerve off the track to avoid the Ford and trailer colliding with the police car.  This is described as the second incident. 

10Bartolo then turned the police car around and continued following the Ford back onto Holden Road.  The Ford once again slowed down and stopped in the middle of the road, causing Bartolo to anticipate another attempt to ram the police car.  This is the third incident. 

11The Ford then attempted to reverse into them but was unable to do so due to the trailer jack knifing, forcing the trailer to veer left and the Ford to be momentarily positioned across the road.

12The Ford then accelerated on Holden Road, crossing Plumpton Road.  As it passed Plumpton Road, it stopped once more and reversed towards the police car with the trailer nearly colliding with a tree.  The Ford continued on Holden Road, turning left into Leakes Road and travelling south at a speed of about 120 kilometres per hour.  Still on Leakes Road, it travelled through the Melton Highway intersection by which time Senior Constable Bisby and First Constable Murdoch were parked in a divisional van on the highway.

13The Ford then turned left onto Tarletons Road where it remained for about
2 kilometres with Bartolo following, but when it turned onto an unsealed track called Government Road, he was unable to pursue it due to the condition of the road.  Therefore he did a U-turn and drove back to Tarletons Road. 

14At about 2.37 am, First Constable Hardward and Constable Walker, were patrolling the Deer Park area when they heard a call for assistance through police communications.  On arriving at Leakes Road, Walker saw the Ford driving, 'All over the road', at a fast speed with the trailer no longer attached.

15As they followed the Ford, it did a U-turn and drove towards the police car.  When the Ford was near the police car, it swerved towards it, forcing Walker to pull over to the side of the road.  This is the fourth incident.  Walker then waited 10 seconds and drove after the Ford.  By this time there were three other police units following the Ford.  One of these units contained Sergeant Jenkins and Senior Constable Elijah who were stationary with headlights off but the engine running, outside 20 Troups Road.

16The Ford's headlights were not on.  The vehicle was damaged and it had a blown rear driver's side tyre.  The Ford's headlights then came on and it changed direction and drove at the stationary police car.  Elijah immediately turned his headlights on and took evasive action.  The Ford missed the police car by 30 centimetres.  That is the fifth incident and then it continued south on Troups Road.  That is Charge 2 on the indictment, recklessly exposing an emergency worker to risk by driving.

17Another of these units contained Senior Constable Hutton and First Constable Dunn who observed the Ford driving fast with full beam headlights and a spotlight on the wrong side of the road.  They also saw the Ford drive at the police car, causing it to leave the road.  The Ford then left Leakes Road and entered the Western Highway and drove across the nature strip onto the wrong side of the freeway and continued driving.  The Ford was fishtailing and swaying and emitting smoke and sparks.

18It entered the gravel carpark outside the Sundowner Caravan Park at Rockbank.  It then crashed through the boom gate at the entrance before disappearing from the sight of the police.  Hutton drove into the caravan park after the Ford and saw smoke coming from the vehicle and rubber on the road indicating a blown tyre.  He then watched the Ford drive through the back wire fence of the caravan park, causing a hole.  The Ford then travelled onto Westcott Parade, driving straight through a roundabout.  It had two blown tyres and was being driven on the wheel rims and was observed to be handling the road appallingly with the rear of the Ford sliding out.

19Hutton and Dunn continued to pursue the Ford through the hole it had left in the fence.  The Ford continued driving and turned into Troups Road and attempted to drive through temporary cyclone fencing at the railway line but got stuck and could travel no further.  You got out of the Ford and ran towards the rear fence of 20 Troups Road North and hid under a caravan in the yard of that premises.  Jenkins had chased you on foot and heard a phone ring, thus identifying your location.

20You were arrested and at the police station testing disclosed the presence of cannabis and methylamphetamine.  This is the basis of Summary Charge 1.

21You told the police that you had consumed both drugs, and in the recorded interview which followed, you admitted driving the Ford.  Although you declined to answer further questions, you said you did not try and hit any police officers but you panicked and were scared and so tried to scare the police away from you.  You said you had not wanted to hurt anybody or anything.

22You said you could not recall doing U-turns to hit police officers and that you were disappointed in yourself, that you had worked hard to avoid trouble and you should be home looking after the children.  You could not explain why you ran from the police, and you apologised to them for your stupidity. 

23You were remanded in custody and you have remained there for a total of 328 days.  At a committal mention hearing on 31 October last year, you indicated that you would plead guilty to the principal charges and on  5 December, you pleaded guilty to all charges except Charge 1 on the indictment and Summary Charge 1 to which, after negotiation, you indicated on 7 May 2019, that you would plead guilty.

24I accept that this was, in effect, an early plea and it means you are entitled to a discount on your sentence because of the utilitarian benefits of the plea in having avoided a trial and having expedited and facilitated the progress of the case through the criminal justice system.  It also indicates that you have accepted responsibility for your behaviour which is confirmed by your apology to the victims and by the remorse and contrition you expressed to police when you were interviewed.  Your choice of appearing before the respected Elders in the Koori Court is also a confirmation of this. You were challenged by the Elders to explain your criminal acts and you responded in a genuine manner. 

GRAVITY OF OFFENDING

25Before considering other aspects of your personal circumstances and background, I shall turn to an assessment of the gravity of your offending.  The charge of exposing an emergency worker to risk by driving is an inherently serious charge because the legislature regards the safety and protection of police officers and other emergency workers from dangerous driving as a matter of special concern. 

26Dr FitzGerald, who appeared on your behalf, conceded this.  Indeed I have borrowed from his submissions in this regard.  He went on to note that the particular offence with which you are charged is in the least serious category of a hierarchy of offences and a custodial sentence is not mandated.  As can be seen from the details of the police pursuit, you acted in a number of ways to increase the danger of your actions, which amounts to a considerable degree of aggravation, pointing to a greater need for the sentence to reflect general deterrence and in your case, specific deterrence as well.

27The pursuit took place on public roads for the most part where other road users might easily have been exposed to danger.  Indeed, a taxi was in the vicinity of the roundabout at Plumpton Road and Melton Highway.  You drove on the wrong side of the road on the Western Freeway which was inherently very dangerous.  In the caravan park there was a high potential for pedestrians to have been placed at risk by being hit by your car.  The hole you made in the wire fence by driving your vehicle through it caused considerable damage to that property in your desperation to get away in a car that was already badly damaged.

28Six police officers were put at risk by your driving.  Three times during the four incidents, the police had to take evasive action as your vehicle or the trailer came towards them. 

29In addition you had no driving licence.  Indeed you have not ever had a driving licence during the 10 years since you turned 18.  You were speeding and you were substance-affected at the time.  Each of those matters is the subject of separate summary charges and you will be punished for those individually in such a way as to avoid double punishment.

30You did not have proper control of your vehicle when reversing at speed and after some time the damaged condition of the vehicle had deteriorated so as to make it uncontrollable or unmanageable.  Fortunately your vehicle did not make contact with any other vehicle and no one was injured, nor were your actions such as to deliberately ram the police cars but they were attempts to scare the police in the hope that they would cease the pursuit. 

PERSONAL CIRCUMSTANCES

31I turn now to your personal circumstances and background.  You are now aged 28 and until your arrest you had been living with your mother and her new partner.  Both your parents are of indigenous heritage.  They separated when you were aged seven and after some years your mother re-partnered.  You did not get on well with your step-father and so you lived with your father for a time during your adolescent years.  You left high school during year 10 and began work in roof tiling and restoration with your older brother.  You also worked as a bricklayer and forklift driver, so you have acquired various skills.

32Unfortunately you have an acquired brain injury and mild cognitive impairments as a result of three road accidents at ages 17, 21 and 24.  Two of those resulted in loss of consciousness and the third in 2014 caused serious injuries, a fractured leg and pelvic and spinal injuries.  You used alcohol, cannabis and ice during your teenage years, becoming dependent on ice after the second road accident when you were 21.  You were only able to cease using it 2015 when you spent time in two stints at Wulgunggo Ngalu Learning Place.  You are the father of two young children, born to different mothers and both children now live with your current partner.

33In the months before you committed the offences, tensions in your domestic life became overwhelming and you relapsed into using ice after having abstained for two and a half years following your placement at Wulgunggo Ngalu.  You and your partner and the two children were living with your mother and step-father but the crowded household and accompanying tensions led you to look for rental accommodation which proved to be unsuccessful.  In this context you began socialising with past acquaintances who still used methamphetamine.

34You were assessed in 2014 by Dr Linda Borg, a neuropsychologist who identified some neurological deficits which are not consistent with the effects of drugs or a mood state and so tend to support a mild brain injury.  Dr Borg perused your mental health history over past years, which included major depressive disorder, depression with suicidal ideation, post-traumatic stress disorder and adjustment disorder and anxiety.  You were having treatment for these conditions at that time.

35Dr Borg concluded that these difficulties resulted in:

'Physical expression of his feelings through negative behaviours such as substance abuse or aggression'. 

36Dr Borg also identified your strengths which include a good memory, the ability to take in new information and retain it over time and the capacity to learn how to manage your behaviour.  You were assessed again, neurologically, in 2018 by Dr Matthew Hughes who also diagnosed mild brain injury with marked verbal learning difficulties but with intact functions for participating in the activities of daily life without the need for assistance.

37A few months later you were seen by Ms Cidoni, a consultant psychologist, who considered that your brain injury is linked to severely compromised planning, self-monitoring and poor impulse management and poor judgment.  She set out the way in which your behaviour would be adversely affected by ice as resulting in:

"Delusions, agitation and behaviour that is often disorganised, risky and where cognitions are confused with thoughts racing and there is difficulty thinking and understanding'.

38Ms Cidoni also identified past diagnoses of depression with current indications for it, as well as for panic symptoms.  She went on to say:

'In view of his mental state, his long-term coping in a prison environment would weigh heavily upon him and could worsen his mental state'.

39Dr FitzGerald submitted as to penalty, that your efforts towards rehabilitation indicate that those prospects are quite strong.  You have been in custody for about 11 months now and your partner visits you twice a week.  She has organised a rental property where you will live with her when you are released.  You have twice-daily telephone calls with the children.  You have a supportive extended family with your parents and sister and her partner all attending court for your plea hearing.

40Whilst in prison you have completed seven vocational and personal improvement courses in addition to the Alcoholics Anonymous and Narcotics Anonymous course and you have produced satisfactory drug screen results.  You have taken part in aboriginal art classes and have displayed considerable talent according to the examples you brought along to the plea hearing.  You wrote a letter of apology to the police officers whom you placed at risk, in which you added that you were grateful at being caught because it has prevented you from spiralling downwards on a drug-fuelled path.

41You say that you are proud that you are now drug-free and healthier than before.  Your father is a truck driver and he is keeping a truck for you to drive when you are released and when you can regain your driving licence.  In the meantime you are promised work with a long-time friend, Joel Hanson, whose business is to install guardrail systems and wire rope barriers on roads. 
Mr Hanson knows you well and has written of your progress after leaving Wulgunggo Ngalu Learning Place last year before you committed the new offences.

42He considered that you had learnt key lessons at that time and that this new offending is out of character but he stated that you are very remorseful and you understand how wrong your decisions were.  Your prospects for rehabilitation will depend on your ability to remain drug-free and to manage the other problems you have had in the past which are inevitably interconnected.  Your prior criminal history is largely attributable to a propensity to drive without a licence and to pay no regard to road rules. 

43You were first convicted of driving whilst disqualified in 2009 and subsequent convictions include three for dangerous driving.  It is an appalling record.  Littered throughout it are convictions for other types of offending including possession of drugs, possession of a controlled weapon and a variety of dishonesty offences.  These matters are relevant to your chances of rehabilitation because they indicate an entrenched disregard for the rules which try to give priority to community safety.  If you have developed insight into the need for those rules and into your own need to obey them, your chances will be better.

44Dr FitzGerald submitted that you have benefited from community-based orders in the past, including two Community Correction Orders that you completed except for the work hours in 2016 and 2017.  You demonstrated during this time, for about 18 months, until the offending for which I am sentencing you, that you were able to remain free of offending but that pressures of life undid that good record.  The recent assessment report from Corrections suggests you will now be a good candidate for a further order and that you have taken meaningful steps towards your rehabilitation.  Dr FitzGerald attended the Magistrates' Court with you yesterday and confirmed that there are now no further Community Correction Order obligations outstanding.

45Would you stand now please, Mr Murray.

46[1]I sentence you in the following way.  Dealing first with the indictable charges, for Charge 1, six months' imprisonment, for Charge 2, 12 months, for Charge 3, six months.  For the summary offences, for Charge 4, six months.  For each of Charges 6, 26, 27, 22 and 1, one month.  All the sentences are to be served concurrently.  Any licence or permit to drive that you hold will be cancelled for two years in relation to Charge 2 and for six months in relation to

[1] Note  following discussion with  counsel the sentence was amended and appears on the  last page of this document

Summary Charges 4 and 1.  They will also run concurrently.

47This results in a total effective sentence of 12 months.  In addition, you will be subject to a Community Correction Order which will start on the date of your release and it will last for two years.  It will apply to the indictable charges and to summary charge 4.  You will be under supervision and you must perform 100 hours of unpaid community work.  You must submit for drug testing and treatment and for mental health assessment and treatment and you must undergo any other programs to which you might be directed.

48You will also have to attend court for judicial monitoring, which I shall explain to you shortly.  Any hours of the treatment programs that you complete may be credited against the work hours.  So, in other words, if you spend an hour or two, or whatever, on drug treatment or mental health treatment, then that will be credited against the work hours and you will not have to perform those.

You have been in custody for 328 days not including today.  I declare that time to be reckoned as already served and I shall note it on the court record.

49The prosecution seeks an order for compensation that you pay the sum of $1,980 to the Sundowner Caravan Park, and I make that order.

50Under s.6AAA of the Sentencing Act, if you had pleaded not guilty to these charges, I would have sentenced you to two years' imprisonment with a non-parole period of 18 months.

51Now, first of all Ms Duckett, is there anything I have omitted or neglected?

52HER HONOUR:  Thank you.  Anything else, Dr FitzGerald?

53DR FITZGERALD:  Nothing further.

54HER HONOUR:  I'll explain to Mr Murray how the judicial monitoring works.  Mr Murray, shortly I'll make a date for you in September to come and see me here at court.  I'll have a progress report from your Corrections worker.  No one else will be here.  The lawyers need not attend.  It'll be a conversation between you and me and the Corrections case worker, who will probably be on the screen up there from wherever he or she is, but I want you to come here and it'll be 9.30 probably.  17 September.  You'll have an opportunity to read your progress report before I come into court.  So, we'll then discuss how you're getting on.

55OFFENDER:  Thank you.

56HER HONOUR:  And right now I think the Community Correction Order is ready for signature.  Dr FitzGerald would you like to accompany my associate to the dock for that?

57DR FITZGERALD:  Yes, Your Honour.

58HER HONOUR:  Ms Duckett, did you have something to say?

59MS DUCKETT:  Yes, just briefly, Your Honour, in relation to the summary charges, 26 and 27 and 22.  They attract a penalty unit. 

60HER HONOUR:  Not an imprisonment, thank you.

61MS DUCKETT:  Not an imprisonment.

62HER HONOUR:  Let me just fix that.

63MS DUCKETT:  Yes, as does drive whilst exceeding PCD.  On Charges 26 and 27, the maximum penalty is that of 10 penalty units and on Charge 22 for drive unregistered motor vehicle, the maximum penalty is I think this is a subsequent offence, is 50 penalty units.

64HER HONOUR:  Yes, I see, yes.

65MS DUCKETT:  And then the drive vehicle whilst exceed PCD.  And it's a first offence.

66HER HONOUR:  That would be ‑ ‑ ‑

67MS DUCKETT:  And so that is a maximum penalty of 12 penalty units.

68HER HONOUR:  All right, so summary charges  4 and 6 can remain the same.

69MS DUCKETT:  Yes.

70HER HONOUR:  And for Charges 1, 22, 26 and 27 an aggregate fine of $1,500.  Does that breach any of those penalty unit maximums, I don't think it does.

71MS DUCKETT:  No, Your Honour.

72HER HONOUR:  All right, thank you for your assistance, Ms Duckett and
Dr FitzGerald.

73DR FITZGERALD:  Thank you, Your Honour.

74MS DUCKETT:  Court pleases.

SENTENCE

Following discussion with counsel  the sentence  was amended to:

charge 1, six months' imprisonment

charge 2, 12 months

charge 3, six months 

For summary charges 4 and 6 six months imprisonment on each charge.

This results in a total effective sentence of 12 months. All the sentences are to be served concurrently

For each of summary charges 1, 22, 26, and 27  an aggregate fine of $1,500

Any licence or permit to drive that you hold will be cancelled for two years in relation to charge 2 and for six months in relation to summary charges 4 and 1.  They will also run concurrently.

In addition, you will be subject to a Community Correction Order which will start on the date of your release and it will last for two years.  It will apply to the indictable charges and to summary charge 4.  You will be under supervision and you must perform 100 hours of unpaid community work.  You must submit for drug testing and treatment and for mental health assessment and treatment and you must undergo any other programs to which you might be directed.  Any hours of the treatment programs that you complete may be credited against the work hours.  So, in other words, if you spend an hour or two or whatever on drug treatment or mental health treatment, then that will be credited against the work hours and you will not have to perform those.

You must attend for judicial monitoring on 17 September at 9.30am, and I have already explained to you how judicial monitoring works.  

You have been in custody for 328 days not including today.  I declare that time to be reckoned as already served and I shall note it on the court record.

The prosecution seeks an order for compensation that you pay the sum of $1,980 to the Sundowner Caravan Park.and I make that order.   

Under s.6AAA of the Sentencing Act, if you had pleaded not guilty to these charges, I would have sentenced you to two years' imprisonment with a non-parole period of 18 months.

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