Director of Public Prosecutions v Natano

[2023] VCC 283

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-21-02659

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELIAS NATANO

---

JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2023
DATE OF SENTENCE:	3 March 2023
CASE MAY BE CITED AS:	DPP v NATANO
MEDIUM NEUTRAL CITATION:	[2023] VCC 283

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Arson – Negligently cause serious injury – Fail to render assistance – Criminal damage – Intentionally cause serious injury – Make threat to kill – Conduct endangering life – Aggravated Carjacking with offensive weapon   

Sentence:                  Convicted and sentenced to a total effective sentence of 15 years and 3 months imprisonment with a non-parole period of 12 years.

Section 6AAA declaration: Conviction and total effective sentence of 18 years imprisonment with a non-parole period of 15 years.            

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Grant	Office of Public Prosecutions
For the Accused	Mr R.F. Edney	Emma Turnbull Lawyers

HER HONOUR:

1Elias Natano, you have pleaded guilty to 16 indictable offences and 3 summary offences, in respect to a series of incidents which occurred over the night of 3 to 4 April 2021.

Background

2At the time you were 28 years old.  You were living at home with your parents, and younger sister.  They were away for the Easter period, leaving you home alone.

3You had, in the past, been fairly close with your younger brother Madison.  The relationship between you changed in 2017, when your brother was in a relationship with Dakota and they had a child together.  Because of his attention was being given to his partner and child, the two of you did not spend as much time together, which left you feeling lonely and isolated.[1]

[1]Deacon page 3 “Account of Offence”

4You were a regular smoker of Cannabis.  You report that smoking that drug made you feel paranoid and that people might be laughing at you.  You became suspicious that your brother was using you, when meeting up to smoke cannabis, and you felt that he made no effort to contact you except to smoke together.  You developed feelings of resentment towards a former friend, “Cameron Findlay”,[2] for similar reasons.

[2]A pseudonym.  Pseudonyms will be used for victim of Charge 1 and 2 and her family.

5Over the years before these offences your resentment and ill-feelings towards your brother varied. These feelings of resentment grew over the course of a year, after you have lived with your brother and his partner for a time in early 2020.  There had been an angry exchange of words, but no physical fight between you and Madison save for an altercation three years earlier.  You had angry thoughts sometimes, but no plan to harm him.  You did not try to resolve the issue by talking to him about how you felt about losing the previous closeness of your relationship.[3]  

[3]Psychiatric Report of Dr Adam Deacon, Consultant Psychiatrist,  page 3 (Report of Dr Deacon)

6Leading up to these offences you had been having dreams about harming your brother, about having your hands around his neck.

7In the months leading up to these offences you had had been drinking heavily, as you had not been able to get Cannabis.  In the days prior to 3 April 2021 you had been sleeping less, and on that day you fell asleep at 6 am and woke at 4.30 pm. 

8You say you drank around 600ml of whisky in the 5 or so hours between waking up and committing the first offences.  You say you snapped into an angry mood, whilst drinking.  You had been brooding about your life, about having been bullied and belittled, and you decided to “do something”.  You took the knife from your family’s kitchen, and filled a bottle with petrol with a plan to torch Cameron’s car, and to slash the tyres on your brother’s car.

Summary of Offending

Incident 1 -  approximately 9.30 pm to 9.35 pm - Mickleham

9You drove over to Mickleham in your sister’s Golf. You parked down the road from Cameron’s home  around 9.30 pm.  Cameron was not at home but his mother, Fiona, and 18 year old younger brother, Gavin, were.  You saw that Cameron’s car was not there, and so you poured the petrol from the bottle onto a chair near the front door of the Findlay home, and set it on fire.  [Charge 1, Arson]

10You walked back to the Golf.  Meanwhile, Gavin and Fiona had smelled the burning chair.  Gavin got water and put the fire out, whilst Fiona walked outside to see who had set the fire.  Someone pointed you out to her, and she followed you down the street.  She tried to speak to you, and to use her phone to film or photograph you. 

11CCTV footage from a house nearby captured what happened next.  You got into the Golf, and started the car.  The headlights of the Golf came on.  Fiona was standing on the road, holding her phone up.  The light from her phone camera can be seen at one point.

12You pulled out from the kerb and drove directly at Fiona as she stood on the road.  You drove into her. The front centre-left side of the bonnet of the car struck her and threw her into the air.  You drove off without slowing. [Charge 2 – NCSI, Charge 3 Failing to stop and render assistance]

13Gavin found his mother on the road, bleeding from the head, covered in blood.  He called 000.  Cameron arrived home to find his mother bleeding and semi-conscious on the road.  Fiona was bleeding, her eyes were crossed and she was vomiting.  A neighbour was trying to help her. 

14Fiona was taken to the hospital, where she remained for 10 days.  She had several operations, and then follow up treatment.  Her injuries were life threatening, and substantial and protracted.  The injuries included:

(a)   Subgalea haematoma;

(b)   Fractures to her jawbone, 4 fractures to vertebra at different parts of the spine, a fracture to her sternum, and fractures to her teeth and her right ankle; and

(c)   Numerous lacerations and abrasions.

15On the third day after you hit her, Fiona had surgery for the spinal fractures, and 5 days after that her right ankle was repaired, with screws being used to do this.  She was required to wear a surgical collar for 6 weeks, and a CAM boot for 3 months.  She has required ongoing rehabilitation to assist her to recover, and has lost full movement of her foot.

16In her Victim Impact Statement Fiona described the fundamental change to her life since you ran her over.  She has lost her independence, her sense of competence and security.  She was an active self-confident woman who through her own efforts had financial security and who took care of her children.  Now, she needs the care of her parents and children in many aspects of her life, and she has lost her financial security.  She feels unsafe and is suffering the effects of post traumatic stress disorder.  She has severe anxiety, panic attacks and depression. 

17She has described, also, the long and painful process of physical recovery, which still impacts her life, and which is expected to require further serious surgery in the future. 

18Her son Gavin has also provided a Victim Impact Statement.  You have taken the joy from his life. He relives seeing his mother on the road bloody and looking as if she were dead.  He feels, wrongly, that he failed to keep his mother safe, which affects his behaviour now, so he stays home more and is always on the look out for danger.

19I have not done justice to the contents of these Victim Impact Statements but have tried to capture their essence.

20When you were interviewed you told the police you went there to “mess” with the home of someone you did not like, that is Cameron, and you ran into his mother.  You said you went there to set Cameron’s car on fire, but when Cameron was not there, you set the lawn furniture on fire.  As you walked back to your car you could hear Cameron’s mother say something to the effect that she had “got you on camera”.  You saw the flash of the camera.  You said that you saw her, and that you thought she was expecting you to stop, but you did not want to stop, so you ran into her.[4]

[4]RoI 393 – 421, 456-457, 747-748

Incident 2 – approx. 10.13 to 10.17 pm – Kalkallo

21From Mickleham you drove over to Kalkallo, to your brother’s home.  Your brother Madison lived in a new development in Kalkallo, with his partner Dakota and their 3 year old child. 

22You parked the Golf diagonally across the road from his house, got out with the knife you had taken from the kitchen at home, and methodically cut the tyres of the car parked in the driveway outside the garage. [Charge 4, intentionally damaging property]

23You walked back to the Golf and as you reached the driver’s side door, Madison ran from the house, across to where you were.  He had heard the air coming from the tyres, and come outside to investigate. He recognised you and called out to you asking why you had done that to the car.  You ignored him and got into the car and turned on the ignition.  As you did so Madison jumped on the windscreen, attempting to damage it so that you could not see though it and so you would not be able to drive away.  You got out of the car.

24You and Madison then fought, on the roadway.  You were still holding the knife.  In the course of this scuffle you stabbed Madison in the chest.  The knife entered under Madison’s right armpit, severing one large vein and cutting another.  These bled profusely.  Madison said it felt as if a waterfall of blood was coming out from this wound, if felt like his life was draining out of him.  Madison was immediately weakened and could no longer defend himself.  He put a hand over the wound trying to stem the bleeding.  He said something to the effect of “no more, I’ve had enough” and “why, bro, why?”.

25You kept coming at Madison.  You stabbed him twice in the abdomen, perforating his bowel in multiple places.  Madison said it felt like his intestines were coming out.  He can be seen in the CCTV footage standing hunched over, holding his stomach with both hands.  He said he felt like he was coming in and out of consciousness, that he recalled thinking he wanted to say goodbye to his daughter, as he knew he was dying.

26Dakota had come outside, and you turned away from Madison.  You pointed the knife at her and said “You bitch, I’m going to kill you, you’re next.”  [Charge 6 – Threat to Kill] You said to Madison “I’m going to do what I’ve just done to you to your partner and daughter.” 

27You ran after Dakota, who fled towards the house, fearing you would kill her and her child.  You stopped chasing her and went back to Madison.  He was still standing hunched over holding his stomach.  As you walked towards him, he backed away, bent over.  You stabbed him again, this time in the neck.  He fell to the ground.  [Charge 5 – Intentionally Causing Serious Injury encompassing all the stab wounds]

28Dakota was still outside.  You turned back to her, and she ran inside, and locked the door.  You walked over and tried to enter, but could not open the door, so you went back to the Golf and drove away.  Madison was lying on the road, apparently unmoving.  This was three and a half minutes after you had arrived.

29You drove around trying to find the exit from the housing development, but you got lost, and drove back down Madison’s street.  He was still lying on the road.  You drove over his legs, causing a fracture to his left thigh. [Charge 7 Reckless Conduct Endangering Life]

30One of the police officers who attended the scene had to pinch Madison’s intestines, which were coming out of one of the abdominal wounds, to put pressure on the cuts.  He also had to put three fingers into the wound under Madison’s armpit to try to stop the bleeding. 

31Madison was taken to hospital by ambulance.  He needed an emergency blood transfusion on the way, and on arrival at the Royal Melbourne Hospital he had unrecordable blood pressure.  He was in hospital for 9 days.

32You intentionally caused serious injury to Madison.  His injuries were life threatening.  They included:

(a)   Cuts to the large veins from the stab to the chest, requiring surgical repair;

(b)   Laceration of a nerve in his arm, requiring surgical repair;

(c)   Two stab wounds to the abdomen, with 6 associated penetrating wounds of the small bowel and two defects in the tissue holding the bowel to the abdominal wall.  A small part of the bowel was removed in surgery;

(d)   Right sided pneumothorax, with a laceration to the right lower lobe of the lung; and

(e)   A cut to the left elbow with partial tears to forearm muscles.

33The wounds to the abdomen were life threatening.  It is unlikely that Madison would have lived if he had not had the blood transfusions and surgical repair.

34By running over Madison, as he lay on the ground, you caused a fracture to his left femur requiring a nail to fix displaced bone, and a penetrating injury to the left knee.

35Whilst no Victim Impact Statement has been provided by Madison or Dakota, I do not consider this means that they were unaffected by your crimes. 

36When telling the police about this incident, you gave the history I set out earlier.  You said you went to Madison’s home to mess with him, to take revenge for the things that happened between you.  After stabbing the tyres you “Just felt the same way as I felt throughout the whole …  night, just – you know, just kinda a cold kinda feeling.”[5]

[5]Record of Interview, 819

37You said you did not go there to kill him, it just happened.  You said you could not explain the escalation, that you were “the devil’s tool for that night”.  You were conscious, present, and just let it happen. You did not think twice about your actions.[6]

[6]Record of Interview,  571 - 581

38Regarding Dakota, you said that you had intended to stab her, also, but you could not get into the house, so you drove away.[7]  You said, regarding running over Madison, that you did not really mean to run him over, you were just not watching where you were going and ran him over trying to leave.[8]

[7]Record of Interview, 600

[8]Record of Interview,  626

39You drove home, changed your clothes and washed your brother’s blood from your face and hands.  You went to a bottle shop where you bought more whisky, at around 10.49 pm.  From there you drove to Craigieburn.

Incident 3 – Craigieburn – approximately 11 pm

40You arrived at the address of the Mammone family.  They were away for the Easter weekend.  You have lived next to them around 3 years earlier.  They had taken out an intervention order against you.

41Mr Mammone was a mechanic, and so there were a number of cars belonging to customers at his address.  You used the knife you still had with you to slash all four tyres on 6 different vehicles parked at Mr Mammone’s property.  Three of these cars were owned by members of the Mammone family, 3 belonged to customers.  [Charges 9 – 14 – Criminal Damage]

42Your offending here was captured by security cameras.  On reviewing it, Mr Mammone identified you as the offender.  The footage shows you acting with some speed but in a deliberate and methodical way.

43You were not asked about this by the police when interviewed as they had not been alerted to this incident.  You told Dr Deacon you slashed the tyres of these cars as you “hadn’t got along with [your] neighbours”.[9]

[9]Report of Dr Deacon, page 5

44From the Mammone property in Craigieburn, you drove to a lookout area, near Melbourne Airport.  You drove by backroads, to avoid being found by the police.

45Whilst at the lookout you drank some more whisky, and contacted your father.  You told the police that you told your father what you had done, and that the police were after you.  You said you were sorry, but that you would not give yourself up to the police.

46You drove home, arriving at around 12.28 am.  When you stopped in your driveway you saw a marked police vehicle parked near your house, and you realised that they were there for you.  You got back into the Golf and drove off.

Incident 4 – Mickleham – approximately 12.34 am 

47Senior Constable Nesser and Constable Wilcox were in the marked police car.  They pursued you, activating the lights.  You did not pull over.

48You drove away at around 80 kph, until you reached Mickleham Road, where you increased your speed.  You overtook another vehicle, travelling at an estimated 140 kph.  You braked to avoid colliding with a 4WD, which was towing a caravan, and lost control of the Golf.  It spun and hit the guard rail. This was at about 12.33 am.

49Officers Nesser and Wilcox pulled up in the marked police car.  You got out of the Golf, holding the knife in your right hand.  You walked towards them.  As the police were getting out of their car you turned back to the Golf.

50The police officers drew their firearms.  They repeatedly told you to drop the knife.  You turned back and started walking towards them, holding your arms spread out.  As you advanced on them you yelled words to the effect of “You will have to kill me” and “You’ll have to put a bullet in me”.  You continued to advance towards the police raising the knife in your right hand. 

51By this time you were near the driver’s door of the marked police car, a BMW sedan.  You got in and drove away.  [Charge 15 - Aggravated Car-jacking]

52As you were doing so, Senior Constable Nesser tried to use the remote to turn off the engine, but he was unable to do so in time.

53You drove off, at speed, south down Mickleham Road.

54Your offending caused both police officers to suffer psychological harm.  The anger, shock and apprehension caused by your actions has impacted how they react at work, and at home. 

55You told the police, when interviewed, that you tried to provoke the police to shoot you.  You said you just wanted to die that night.  Once you realised that the police officers were not going to shoot you, you decided to steal the car to try to provoke the police to be more forceful, to shoot you.[10]  You said if the police had tried to stop you taking the car “the knife would’ve been used… the same way I stabbed my brother.”[11]

[10]Record of Interview, 1244-1247

[11]Summary of Prosecution Opening [35(8)]

Incident 5 – Pursuit – 12.34 am to 12.45 am

56The Police Air Wing was deployed to follow you in the stolen police car, as well as two marked police cars, with lights and sirens activated.

57You drove south down Mickleham Road, then east on  Somerton Road, then south on Sydney Road/Hume Highway.  The in-car footage from the police vehicle showed you:

(a)   driving at 170 to 225 kph.  On Mickleham Road and Somerton Road you drove at up to 200 kph;

(b)   Changing lanes repeatedly at high speeds when driving down the Hume Highway;

(c)   Running a red light at the intersection of Pascoe Vale Road and Somerton Road;

(d)   Approaching the intersection of Somerton Road and Sydney Road at approximately 180 kph, running a red light at that intersection, turning right down Sydney Road and then driving at speeds of around 200 kph.  At that intersection there was traffic waiting, which you put at risk; and

(e)   Crossing double lines when overtaking.

58When you approached the intersection of Sydney Road and Barry Road, at around 12.45 am, the traffic had stopped at a red light.  You tried to force the police car through a narrow gap between two lanes of traffic.  In so doing you collided with four stationary cars, causing them substantial damage.  One was a write-off.  The driver of that car had to be cut out of his vehicle, and he suffered minor injuries. 

59The collisions caused the airbags in the police car to deploy.  You came to a stop on the other side of the intersection.

60This period of driving of the stolen police car, gives rise to Charge 16, reckless conduct endangering life, and to Summary Charge 34, failing to stop and render assistance after an accident. 

61In the police interview you admitted driving at more than 100 kph on Mickleham Road, Somerton Road and Sydney Road.  You said there was a fair bit of traffic on the road, and your speed when you hit the cars at the intersection was around 80 to 90 kph. 

Incident 6 - Arrest

62You got out of the police car, again brandishing the knife.  There were members of the public around, and multiple police officers.  The police officers called to you to drop the knife.  You did not do so.  You ran away, into a side street off Sydney Road.  Police officers chased you on foot, still yelling to you to drop the knife.

63A police dog was deployed, to try to stop you.  You waved the knife at the dog, which took hold of your thigh.  You shook the dog off, and kept running.

64A marked police car was used to try to nudge you, to get you to stop.  The first nudge did not have any effect, the second caused you to jump onto then off the hood of the car.  You were still threatening the police dog’s handler, Senior Constable Williams, with the knife. [Summary Charge 35 – Resist police]

65Senior Constable Williams tried to kick you, then grabbed you in a bear hug, from behind.  Other police came to his assistance. You finally let go of the knife, and were arrested.

66You told the police you knew you could not escape but you were still trying to provoke them to shoot you.

67Finally, Summary Charge 36 is a charge related to you driving over the course of these events, whilst only having a Learner’s permit, with no accompanying driver.

Personal Circumstances

68You were 28 at the time of the offending and are now 30 years old.  You were raised in Auckland, New Zealand.  Your mother is Māori and your father was born in Samoa. 

69You have two siblings, your brother Madison who is around a year younger than you, and a sister who is around 3 years younger than you.

70Your family was loving and supportive.  You praised both your parents. Your cousin who provided a letter in support of you, says that you both “grew up in a loving, kind and nurturing environment”.[12]  Your parents have a strong Christian faith, and whilst you share that faith you stopped attending church around 3 years before these offences.

[12]Character Reference Letter of Mr Kurtis Clark

71You report being shy and quiet since early childhood.  You lacked self-confidence, and your feelings of self-doubt undermined your willingness and enthusiasm for new challenges.  You suffered from social anxiety and became antisocial and reclusive.  You report having few close friends and felt that no-one would want to be friends with you. These negative feelings about yourself were exacerbated by you being bullied at school.  You tended to bottle your emotions up, rather than talk about how you were feeling, and when you did finally react it would be with an explosion of anger.  This occurred at school, and at home.

72Your family moved to Australia when you were 12, and you finished your secondary education in Brisbane.  You often skipped out of school in years 10 and 11 and describe yourself as an average student.  In your free time you mostly played video games and watched TV.

73One activity at school which you did like was playing rugby.  Your cousin Kurtis wrote about you two growing up like siblings, riding your bikes and with a shared love of playing rugby.  You remained close, despite you moving to a different state.  He described you as quiet and softly spoken when you were a kid, and that you would look out for your siblings.

74Your mother writes with pride about your school activities and that you won the school speech and reading competition, and went on to represent the school at a national speech competition. 

75You have worked in a variety of unskilled labouring jobs, such as warehousing, welding and machine operating.  You reported that most jobs did not last more than a year, and that you were a lazy employee, which was made worse by your use of Cannabis.  Whilst you obtained your Learner’s permit, you did not get a full licence.  You told Dr Deacon this was due to laziness.

76You have used cannabis regularly since you were around 17, with some periods of abstinence. You describe using that drug to block your feelings of failure, and anxiety.[13]  You also used Ketamine for a time in the first part of 2020, and took acid once. 

[13]Report of Dr Deacon, page 2

77You started drinking alcohol at age 18, intermittently bingeing on alcohol when you could not get Cannabis.  You reported drinking up to 600 ml of spirits daily when you were bingeing on alcohol, and as with the Cannabis you drank to dull your sense of self-misery.  You usually drank alone, in a shed, but sometimes drank with your brother.

Mental Health

78Your mother, in her letter to the court, noted that as you grew older you often felt anxious. She observed that drugs isolated you from your friends and family.  Your mother wrote that you had no zest for life, and it was passing you by.  Your parents prayed for you and sought help for you from your GP.

79On 10 March 2021 you attended your GP.  You reported you had used to smoke a lot of Cannabis but had not done so for 6 months, and you were having trouble sleeping for around the same period of time.  You reported a lot of anxiety, and that you were moody.  Your GP prescribed an anti-depressant medication.  When you returned to the GP on 24 March 2021 you reported that the medication had been helpful for the first 3 to 4 days, but then less so.  Your sleep was still an issue.  You also had one or more counselling sessions, and you told the doctor on 24 March that counselling had helped.  Your doctor increased the dosage of the anti-depressant and added Melatonin to assist your sleep.[14]

[14]Medical Report recorded by Dr Fadhleena Zulkpili, Medics at Craigieburn

80You gave a somewhat inconsistent account regarding your medication and counselling, to Dr Deacon.  He writes that you were referred to a counsellor, and attended one session, but felt too anxious to go back.  You also told him that your GP prescribed an anti-anxiety medication but you stopped taking it after a week due to the side-effects.[15] 

[15]Report of Dr Deacon, page 3

81These offences occurred 11 days after the second visit to your GP.

82When Dr Deacon assessed you in September and October 2021 you presented without signs of a psychotic disorder and you were calm and in control of yourself and your emotions.  He considered that you were reasonably insightful and you appeared ashamed and remorseful.[16]  Dr Deacon reports:[17]

Mr Natano’s anxiety was accompanied by “mood swings” in the form of feeling downcast and self-loathing. His mood changes were readily triggered when he was subject to criticism. He often ruminated and worried that he was “weak”. He felt disabled to defend himself. He internalised his distress. He ultimately felt like a “small person who got moody over small things”. On occasions he felt acutely suicidal. He once tied a rope around his neck in 2008 in his late teens.

[16]Report of Dr Deacon,  page 1

[17]Report of Dr Deacon,  page 3

83You told Dr Deacon that prior to these offences you had had dreams in which you had your hands around your brother’s neck.  As to your description to the police about being the devil’s tool, you said this was in the context of your faith, and that you had been having “dark devilish thoughts”.[18]  You said that you had never thought about engaging in such extreme behaviour, prior to these events, but alcohol had “opened the doorway”.[19]  Dr Deacon considered that your references to the devil were a reflection of your Christian faith and your way of describing the nature of your actions.[20]

[18]Report of Dr Deacon, page 5

[19]Report of Dr Deacon, page 5

[20]Report of Dr Deacon, page 7 [22]

84Your brother was an important companion for you, given your social isolation and loneliness, and you did not cope with him spending more time with his new family.  You became resentful towards him and Cameron, which progressed to anger.  You did not express and resolve these feelings verbally.

85Dr Deacon accepted that the alcohol you reported drinking likely compromised your mental state.[21]  He said:[22]

Mr Natano[‘s] underlying social anxiety and subclinical depressive symptoms can be considered predisposing factors to his misuse of cannabis and alcohol. These conditions can also be considered background risk factors for the offence matters. These conditions cannot be considered to represent a mental impairment. Mr Natano’s primary problem was poor emotional regulation coarsened by the disinhibiting effects of alcohol.

[21]Report of Dr Deacon, page 7 [18]

[22]Report of Dr Deacon, page 7 [19]

86I note that following the plea hearing your counsel indicated to the Court that he did not press the submission that your use of alcohol on this evening was mitigating.[23]

[23]Email from Defence Counsel to Judge Dalziel’s Chambers dated 15 February 2023

Matters Raised on Plea

87I accept that this offending was out of character, and that nothing in your family life or upbringing taught you that violence of this type was an appropriate way to behave or deal with conflict.

88I do not, however accept the submission that your behaviour was inexplicable.  The explanations you gave to the police were that you were angry or upset with Cameron and your brother, having fallen out with them over matters you would not describe, or which were petty and self-centred.  It would appear that your reason for damaging property at the Mammones was that had been nursing a grievance towards them, also.

89You have described the dreams of harming your brother and it appears that you were brooding over your perceived wrongs.  Then, having been drinking and emboldened and disinhibited by the alcohol, you decided to and did take action  against these people. 

Guilty Plea

90You are entitled to a significant discount in your sentences by reason of your pleas of guilty.  I accept that the pleas are a reflection of your remorse.  Furthermore there has been a significant practical benefit to the courts, and the witnesses who were saved the trauma of giving evidence. 

91Your pleas of guilty were indicated at the earliest reasonable opportunity, adding to the mitigatory effect of this factor.  The weight in mitigation is also increased by the continuing effects of the pandemic on the operations of the court. 

Remorse

92You were not immediately remorseful for your actions.  Having set the furniture on fire at the Findlay home, you drove at Ms Findlay hitting her.  These acts did not cause you to stop and think. 

93You then drove to your brother’s house, caused more property damage, and stabbed your brother repeatedly, before driving over his legs, having not taken any care to see if he was still on the road.  You accept that you were aware you ran over his legs.[24]

[24]Record of Interview, 47, 613, 617, 626

94You then went home, changed your clothes and washed your brother’s blood from your face and hands.  You went out, and purchased more alcohol before going to Craigieburn where you damaged the tyres at the Mammone property. 

95It was after those events that you ended up at the lookout, where you called your father.  You said at that time you thought about what you had done and wanted to die.

96By the time you were at the lookout you appreciated that your conduct was grave and you were feeling very bad.  It is not clear to me, however, whether you were suicidal because of remorse or because you were fearful of the consequences.

97When interviewed, you did make full admissions to most of your acts that night, save for the damage caused to the cars at Mr Mammone’s property.

98You told Dr Deacon last year that you felt ashamed, awful and full of regret.  You were aware of the impact of your offending on your family.[25]

[25]Report of Dr Deacon, page 5

99Your cousin Kurtis writes that he knows that you are very remorseful for your actions.  He refers to the drug and alcohol courses you have done whilst on remand, and says that he is sure you will do everything you can to turn your life around.  Your mother writes that you are full of remorse towards your brother, his partner and the other victims of your offending.  She also writes that you asked your parents to sell your car to pay some restitution for the damaged tyres, and to give financial aid to your brother.

100I accept that you are now indeed very sorry for what you did on this night.  In your letter to the court you say that you are sorry and hope that the people you hurt can move on.  In your oral evidence you took responsibility for your own actions, and did not seek to excuse yourself based on your drinking that night.  Your letters to Ms Findlay and your brother and his family also express remorse.

Custody

101You have taken steps towards addressing your issues whilst on remand.  You have done courses addressing your alcohol and drug issues.  Your letters show you have reflected on your conduct. 

102You have not required mental health intervention whilst in custody, and are generally coping adequately, although your sleep continues to be disturbed.[26]  You asked for but were not prescribed sedatives, to help you sleep.[27]

[26]Report of Dr Deacon, page 7 [21]

[27]Report of Dr Deacon, page 3

103I accept that your time on remand will have been made more difficult by the pandemic, and that this is a factor that may cause additional lockdowns or restrictions in the future.

104I also accept that you will be concerned about whether you will be deported, once your sentences finish.  Your parents live here in Victoria and you have not lived in New Zealand since you were a child.  I take this, and the impact of the pandemic, into account.

Prospects of Rehabilitation

105You have two prior court appearances.  The most recent was for a road rage incident.  This resolved in the Magistrates’ Court in February 2021, and you were convicted and sentenced to a 9 month CCO, with conditions for mental health and drug and alcohol assessment and treatment. 

106You were on this CCO at the time of the these offences. 

107Your only other court matter was for driving offences in 2018, for which you received a non-conviction bond.

108I accept, even in the face of this serious offending, that you do have good prospects of rehabilitation.  You do not have a history which suggests you are person with anti-social attitudes.  You clearly need to learn a better way to deal with conflict and your unhappiness, but this is achievable, if you make the effort.

Gravity of Offending

109Your offending was egregious. Your counsel fairly described this course of offending as serious, spectacular, sustained, and resulting in serious consequences for a number of people. 

110I will now address the specifics of the gravity of the charges.  In so doing I will not set out every detail described in the Opening, but will refer to those which appear to me to be most significant.  I will not always give a descriptor of where any particular offence falls in the range of gravity, noting that the Court of Appeal has advised judges to focus on the facts, not labels or categories. 

Findlay

111Your motivation for going to the Findlay house was to damage Cameron’s car by setting it on fire, because you were angry with him.  Once there, you varied your plan, burning a different item.  Whilst the item burnt, some lawn furniture, was not as valuable as a car, your motivation makes your culpability high, in respect to this charge.

112Your actions in driving at and striking Ms Findlay were ruthless and uncaring.  You told the police you thought she was expecting you to stop.  You saw her, you did not want to stop the car[28] and so you hit her, and then you drove away.  This is shocking conduct.  Whilst not apparently motivated by malice towards Ms Findlay, your disregard for her is part and parcel of your behaviour that evening. 

[28]Record of Interview,  421, 456

113The extent of the injuries Ms Findlay suffered was significant.  They were both life threatening and the consequences substantial and protracted, so that at the time of the plea hearing Ms Findlay is still significantly affected.

114The nature of your driving, your awareness that Ms Findlay was on the road, and your failure to take any action to avoid hitting her, make your culpability very high.

115You then drove away, apparently without any concern for Ms Findlay, in circumstances where you knew you had hit her, and you knew or ought reasonably to have known that she had been seriously injured. 

Madison & Dakota

116You then went to your brother’s house intending to harm him, to punish him for what you perceived as wrongs against you.  You took a knife with you, for the purpose at least of damaging his car tyres. 

117Having damaged your brother’s car to provoke a fight, you then stabbed your unarmed brother repeatedly.  As the footage shows, having chased his partner whilst holding the knife, you went back to where your brother was hunched over his stomach wounds and stabbed him again in the neck, as he backed away from you.  You left him on the road, and then went back to the house trying to get in with the intention of stabbing Dakota, also.[29]

[29]Record of Interview, 855

118You walked past your brother as he lay on the ground, drove away and then drove over him as he lay bleeding on the road, and again you did not stop.  Whilst the charge of reckless conduct endangering life does not require proof that you caused harm, in this case you did cause a significant injury to his leg. 

119You told the police that after you had stabbed the tyres you “Just felt the same way as I felt throughout the whole kinda  night, just – you know, just kinda a cold kinda feeling.”[30]  This is consistent with the CCTV footage in which you appear purposeful and unhurried as you committed this group of offences. 

[30]Record of Interview, 819

120The threat to kill Dakota was also a serious offence.  She had just watched as you attacked your brother, her partner.  She feared you would carry out your threat.

Tyres – Mammone

121It appears you were motivated by a grievance you had with Mr Mammone and his family.  Whilst this offending was the least serious of the night, it nevertheless caused, at a minimum, inconvenience to the owners of the cars or Mr Mammone.

122Your decision to damage the property of these people, and to provoke a fight with your brother, was not a spur of the moment thing.  You decanted the petrol, you took up the knife, you drove to each property.  You had ample opportunity to reconsider your actions. 

Police Incidents

123Your behaviour towards the police was selfish and cowardly.  You deliberately tried to get them to kill you.  You were feeling suicidal, because of your own actions, because you were aware of what you had done to your brother.  You tried to avoid the consequences of your actions, by forcing police officers to take lethal action against you. 

124In this effort you committed a series of offences that put others at risk, and you caused further damage.

125Whilst I accept your state of mind was one of self-loathing and regret, to try to force members of police, whose duty it is to uphold the law and keep our community safe, to take lethal action against you was reprehensible.  The behaviour of the officers on the night was a credit to their professionalism and training.

126Taken as a whole, your offending on this night was very serious indeed.  You caused life threatening injuries to two people, one by gross negligence the other intentionally.  You chose to go and damage property and to provoke a response from your brother and then the police.  Whilst all this offending occurred on the one night, over a period of hours, your actions were deliberate, driven by ill will and in the case of the police related offending, deliberately provocative. 

Current Sentencing Practice

127I have considered the cases to which I was referred by the prosecutor.  These have assisted me in understanding what current sentencing practice is for a number of these offences.  No two cases are identical, but these cases have provided a guide as to the range of sentences imposed in the past.  They do not set upper or lower limits to the sentences I can or should impose.

Totality

128I am required to impose individual sentences reflecting the gravity of each individual charge and your circumstances, and to make orders for cumulation to achieve a sentence which, in total, reflects all of the offending, as well as the factors personal to you. 

129The offending against Fiona Findlay, your brother, and the aggravated car-jacking of the police vehicle are individually very serious charges.  The motivation for the offending against your brother in particular was malice.  In the course of just over 3 hours you seriously injured two people, put others at risk and caused damage in many places. 

130In the face of the numerous serious offences by you in these few hours, it is not an easy task to ensure that the combined sentence captures the totality of your offending, but no more.  Your counsel accepted that the totality of the offending was significant, but urged me to take care not to impose a crushing sentence. 

131The application of this principle means that the orders for cumulation I will make are significantly moderated, and on some charges there is no cumulation ordered.

Sentences

132The sentences are:

Charge	Offence	Maximum penalty	Sentence	Cumulation
1	Arson – camp chair.	15 years	1 year	-
2	Negligently cause serious injury	10 years	5 years	24 months
3	Fail to stop and render assistance at scene of accident in which a person suffered serious injury	10 years	3 years	6 months
4	Criminal damage – slashed 4 tyres of vehicle; house door	10 years	8 months	-
5	Intentionally cause serious injury  – by stabbing.	20 years	9 years	Base
6	Threat to kill.	10 years	2 years	3 months
7	Reckless conduct endangering life – by driving.	10 years	3 years	6 months
8	Fail to stop and render assistance at scene of accident in which a person suffered serious injury.	10 years	3 years	3 months
9	Criminal damage – slashed 4 tyres of vehicle.	10 years	Aggregate sentence of 16 months	4 months
10	Criminal damage – slashed 4 tyres of vehicle.	10 years
11	Criminal damage – slashed 4 tyres of vehicle.	10 years
12	Criminal damage – slashed 4 tyres of vehicle.	10 years
13	Criminal damage – slashed 4 tyres of vehicle.	10 years
14	Criminal damage – slashed 4 tyres of vehicle.	10 years
15	Aggravated carjacking – brandishing knife at police and taking police vehicle.	25 years imprisonment	5 years	18 months
16	Reckless conduct endangering life – by his driving during a police chase.	10 years	3 years	9 months
34 Summary offence	Fail to render assistance after collision with a vehicle where another driver injured.	8 months or 80 penalty units	2 months	1 month
35 Summary offence	Resist police – when police were attempting to arrest him following him running from scene of collision.	6 months or 60 penalty units	3 months	1 month
36 Summary offence	Learner driver without experienced driver beside him when driving motor vehicle. Sister’s vehicle Carjacked police vehicle	20 penalty units	$3,000 fine with conviction

133This results in a total effective sentence of 15 years and 3 months.  I set a non-parole period of 12 years.

Other Sentencing Orders

134Licence Orders your licence is cancelled and you are disqualified from obtaining a licence for a period of 36 months on Charges 7 and 16  and 60 months on Charges 2 and 15.

135I make a finding under s 89C(1) in respect to Charges 2, 7, 15 and 16 that each offence was committed whilst under the influence of alcohol which contributed to offence.

136Having been sentenced to a term of imprisonment on Charge 5, you are then sentenced as a serious violent offender on Charge 6 (Threat to Kill).  Pursuant to s6D I am required to treat protection of the community as the principal purpose for which the sentence is imposed.  I have not been asked to impose a disproportionate sentence on Charge 6.  I direct that it be entered into the records of the court that you were sentenced as a serious violent offender on Charge 6.

137I declare that you have already served 698 days of pre-sentence detention, not including today, and I direct that this declaration be entered into the records of the Court.

138Pursuant to s6AAA, I state that if you had not pleaded guilty I would have sentenced you to a total term of 18 years with a non-parole period of 15 years.

139I will make the ancillary orders sought by the prosecution.