Director of Public Prosecutions v Nelson

[2019] VCC 392

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01770

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN NELSON

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February
DATE OF SENTENCE:	13 March 2019
CASE MAY BE CITED AS:	DPP v Nelson
MEDIUM NEUTRAL CITATION:	[2019] VCC 392

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Plea of guilty – theft – aggravated offence of recklessly exposing an emergency worker to risk by driving - conduct endangering persons – handling stolen goods – summary offences
Legislation Cited:	Crimes Act 1958; Summary Offences Act 1966; Road Safety Act 1986; Control of Weapons Act 1990; Crimes Legislation Amendment (Protection of Emergency Workers and Others) Bill 2017; Bail Act 1977.
Sentence:	Convicted and sentenced to a total effective sentence of five years’ and eight months’ imprisonment with a minimum term to be served before being eligible for parole of four years’ and four months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms B. Goding	Office of Public Prosecutions
For the Accused	Ms L. Dawson	Peter Monagle Lawyers

HIS HONOUR: 

1In this plea heard on 27 February of this year, Mr Steven Nelson who is now 37 and was 36 at the time, and lives at View Street, Pascoe Vale, pleaded guilty to four charges on the indictment. 

2The first was a charge of theft. It involved petrol from a Coles outlet in the sum of $119.63. Such theft was committed on 14 May 2018. A theft charge is a breach of s.74(1) of the Crimes Act for which the maximum penalty prescribed by Parliament is one of ten years.

3The second charge is an aggravated offence of recklessly placing emergency workers at risk of their safety, in this case it related to six operatives. It is an offence pursuant to a combination of ss.317AE, 317AF(1)(b) and 317AG of the Crimes Act, as amended.  There were four special operatives, who qualify as emergency workers, who were on the road at the time of the offence being committed, and another two operatives in the car located further down the road.  I must say the plan, Exhibit D, was of much help, because using the streets and map as I was trying to do on Google, I just could not get it.  The photographs in regard to damage to the vehicle were tendered as Exhibit B.

4The combination of those provisions that I have referred to, and the provisions of the Sentencing Act, in particular s.5(2)(a) and s.16(1A)(j) and s.16(3D), make for this being a category two offence, for which imprisonment is mandatory, the maximum period of imprisonment that can be imposed being ten years. At the time there was no minimum non-parole period applicable to this particular section. I am not sure, Madam Prosecutor, has that subsequently been put in for this or not?

5MS GODING:  No, not - not at this stage.  Still no.  Just the mandatory imprisonment.

6HIS HONOUR: No. So, there is still not. The third charge is a breach of s.23 of the Crimes Act, conduct endangering serious injury.  This is an offence which brings with it a maximum penalty of five years, being driving that may have placed the public in risk of serious injury.  Again, the details of this was somewhat limited, we had a significant discussion about this matter at the plea and that is one of the reasons why the letter of Mr Harrison's was sent (Exhibit E).  In particular, the reference in the depositions relevant to that charge, were detailed therein.  I will come to that in due course.

7The fourth charge is handle stolen goods, this related to number plates, and is an offence under s.88(1) of the Crimes Act, which carries with it a maximum penalty of 15 years. 

8In addition, under s.145 of the Criminal Procedure Act, I was asked to take into account a series of summary offences which arose out of the same circumstances.  Summary Charge 12 and 13, both of which are drive while unlicensed, the first one in Pascoe Vale, the second in Coburg, carry a maximum penalty of 25 penalty units and or three months imprisonment. 

9The next charge was an offence under s.15 of the Bail Act, to commit an indictable offence while on bail. This related to the theft Charge 1 in the indictment. This carries a maximum penalty of 30 penalty units or three months' gaol. The next offence was driving while unlicensed, Charge 16, which has the same penalty, as I have announced in regard to Charges 12 and 13. The next was Charge 17, resist emergency workers, an offence under s.51(2) of the Summary Offences Act, the maximum penalty for which is 60 penalty units and or six months' gaol.

10The next was Charge 21, which was fraudulently altering a numberplate, an offence under s.72 of the Road Safety Act, which also carries a penalty of six penalty units and or six months' gaol. Possession of a controlled weapon was the summary matter Charge 22, an offence under s.6(1) of the Control of Weapons Act, the maximum penalty therein is 240 penalty units and or two years.  Charge 24 was again a charge of commit indictable offence while on bail, and the offence was the handling and resist and the same penalty applies in regard to s.30(b).

11Charge 27 was to drive a vehicle despite a direction to stop from the police, which occurred in Pascoe Vale on 11 May, an offence against s.64(a) of the Road Safety Act. This was Charge 27 for which a penalty is imposed of 12 penalty units or 12 months imprisonment or both. Then two charges of drive an unregistered vehicle, which is a breach of s.7(1)(a) of the Road Safety Act, for which the maximum penalty is 50 penalty units and they were Charges 28 and 31.

12Insofar as the circumstances of this offending are concerned, such was set out in the summary of prosecution opening, which was tendered as Exhibit A, and was accepted by Ms Dawson as the facts appropriate to the sentence.  The presentence detention, as announced today, served to date on remand is 302 days.  Are there any additional orders that I have got to sign?  No?  Just the forfeiture.  Have I signed that?  And I have signed the forfeiture order.

13Mr Nelson comes before the Court with a series of admitted priors extending over a period of 18 years.  As I said he is now 37.  He has been offending since the age of 18.  He has had periods of imprisonment, six months in January 2017, eighteen months with a minimum of nine in October 2016, two hundred and 48 days in July 2016, three months in June 2015 and eighteen months in October 2013. 

14It is somewhat disconcerting to read his priors.  His relationship with police led me to conclude that really the only way you can describe Mr Nelson is as a serial criminal pest, who seems to have a paranoia about police officers.  Your priors, Mr Nelson can only be described as horrific and, in saying that I make the obvious point, at least they are not top category priors, but they mount up.  You have served, as I said, a number of gaol terms.  You have had, on my count, I think seven drive in a manner dangerous, you have had numerous theft offences, you have had numerous resist police, and numerous assault police and emergency workers.  You have had weapons offences and you have had four reckless endangerment of a person's life or placing them at a risk of injury by way of your driving.

15I must say, it is a sorry tale to read your priors, but I stress again you have not graduated to the top level, but the number of offences and the problems you have caused to the police are of concern.  You have had numerous burglaries and weapons convictions, and these offences go back to 2000 when you committed the offence of escape youth training.  Indeed, your original offending in Victoria goes back to 1997, and I have not taken into account your offending interstate.

16As I say, to date the largest head sentence you have received is 18 months, but the problem with you is, if you keep going like this and do not change your life, then you are going to spend the rest of your life in gaol. 

17The plea conducted by Ms Dawson, was formulated by way of a written submission, Exhibit 5.  Insofar as the offending itself, the proposition put to the Court was such crimes were part of your paranoia at the time, probably drug induced. When you saw the military-style weapons being carried by the special operations branch members, you allegedly, so it was put to the Court, thought that they were members of a gang, who were out to assault you, and that this related, in some way, to a prior assault made upon you a week or two earlier. Those matters were set out at paragraph 26 of Ms Dawson's submission and in the psychologist report, Exhibit 1.

18Having considered the proposition put to me, as I think I said during the plea, I do not accept such proposition as plausible.  You were told by the police, by a number of officers according to the depositions, that they were police officers. Even with the paranoia, you might have been suffering at the time, it seems to me totally incomprehensible that you would have believed that those special operation branch members would have been part of a gang, or that a gang would dress like that.  You also, as you escaped saw a siren and the lights of an approaching motor vehicle. That finding is confirmed from Exhibit C, in the context of your 000-call made at 12.07pm that day, when you asked the question of why were you being followed by police, and stated that police, with machine guns, had come out of a van.

19I therefore reject the submission. I am satisfied beyond reasonable doubt that you were well aware of the police, when you committed these crimes.  I do accept, however, that you have an antisocial personality disorder, that you have a polysubstance history, that you have a pervasive distrust of others, in particular, police.  You had indeed been stabbed some seven days earlier.  You were at the hospital, according to Exhibit 6, been ice affected on that day.  You behaved in a bizarre way at the hospital, and indeed your partner proffered that the injury was self-inflicted.

20In coming to analyse this criminality, it is necessary to try to assess the range of the offending.  I accept the propositions put on the original plea, and further propositions put insofar as the additional exhibit tendered today of Mr Harrison, which expanded the analysis of the two main offences.  It was submitted that I should find that Charge 2 was in the mid-range when assessing the objective offending thereof.  In particular, the use of the car of course, the damage to the police car is the very factor that aggravates this offence, but the use of the car and the presence of the officers so close as detailed in regard to the four officers by their statements, and by the map relied upon by the prosecutor as indicating the objective offending in this matter.

21Further the charge is of course, placing the officers at risk.  The fact that they were not injured really is not to the point, although it clearly is not an aggravating factor, because no injury was received.  At the hearing the circumstances were somewhat unclear and given that this was, I am told, the first time that this Court had to sentence for this charge, it was necessary to gain further understanding of these circumstances, and that is why the letter of Mr Harrison, the plan and the references to the depositions was tendered today. It makes it a bit clearer. 

22I do, however, accept that, albeit that Mr Nelson has driven off at a fast pace, given the distance involved, it could not have got to a dramatically fast pace simply because of physics.  Further in my view, despite the comments as to his losing control, the manner in which he escaped, bounced off the police car and off a parked car, indicate to me that whatever way he was afflicted, he was still able to drive the car in a reasonable manner, despite his comments.

23So, I accept the analysis put by the prosecution as to Charge 2 as being a mid-range charge by way of objective offending, given the totality of the circumstances and the matters of aggravation set out by the Act.

24In regard to Charge 3, those are particularly detailed at p.93 of the depositions, in the statement tendered today of surveillance operative 121. 

25They involve a period, after Mr Nelson had left Marshall Road and the scene of the attempted arrest. The officer observes him travel north on Matthews Avenue from Moore Road on the incorrect side of the road, he observed him disobey a traffic light, a red traffic light at the intersection of Matthews Avenue and Dromana Avenue, and then observed him travelling north on Matthews Avenue, crossing to the incorrect side of the road and returning to the correct side of the road in Mascoma Street.

26Somewhat later in the shift, Mr Nelson was further observed by the same operative traveling east on Brunswick Road, Brunswick, travelling towards the train line at approximately 80 kilometres on the incorrect side of the road, and doing so for about 150 metres. The boom gates were down, he then did a U-turn and travelled west on Brunswick Road on the then correct side of the road.  They are the matters that make up the circumstances, as to the objective offending in regard to Charge 3.

27I find that such offending, because of its length, manner, and time in which it was being undertaken, are such that, the objective seriousness of that charge is somewhere between mid-range and high.  I accept that no one was injured, however, when you have persons driving on the wrong side of the road for such a length of time, and driving through a red traffic light one can only say how lucky the community was.  But, in particular, Mr Nelson, how lucky you were. You might have been across the road, or even here, on a more serious offence, with someone being killed. 

28Clearly this was very dangerous manoeuvring of a car for a long period, demonstrating, as I have said, not only driving through a red light but driving for lengthy periods on the wrong side of the road.  Given your history, and I stress, you do not come before this Court to be sentenced again on your history, horrific as it is.  However, given your history and the seriousness of these offences, there is a need, obviously for general deterrence, specific deterrence, denunciation and punishment.

29It is also to be noted that despite the terms of imprisonment you have served, and the alternate attempts at your rehabilitation, such have been unfortunately to no effect.  As I say, fortuitously, your level of offending, has been not at high level criminality, but persistent, as I have said.  You are now, as I remarked, 37.  You have a life ahead of you, that could include your partner and a child, however, unless you change your life, you are heading for a life of institutionalisation.

30In this case there is a need, given your history, to consider another sentencing factor, that is the importance of protecting the community.  Your history on the road, the numbers of charges that you faced by way of assaults of police and endangerment of people on the road make this a consideration.  As I say, fortunately, to date, you have not killed anyone. 

31Ms Dawson, on your behalf, in particular in her written plea, Exhibit 5, stressed your background and the personal factors making up your background. It is clear that you had a very limited education.  You, because of your criminality, were involved in very early sentences involving youth training.  You have been subject to sexual assault. Of course your own behaviours have led to the periods of imprisonment that I have described. Your personal background, your education, employment, drug and alcohol history, including the mental and physical history was set out by Ms Dawson in Exhibit 5, in particular, paragraphs 1 to 24, which I have re-read.

32There was reliance in that submission upon the report that I have already referred to, of Ms Scally.  That report was dated 19 February 2019, Dr Karen Scally is a forensic psychologist and clinical neuropsychologist.  In that report she referred to the unstable childhood that you had had, the difficulties with your mother's relationships, the abuse and violence effected on you as a young boy, your history of learning difficulties and the fact that you left school at such a young age.

33Unfortunately, due to a breach in your original panel beating apprenticeship because of your offending, you have essentially been involved in unskilled work. However, you are a person who is prepared to work, when you can.  You have been afflicted unfortunately by polysubstance abuse. Your history started with an early diagnosis of ADHD in primary school.  As I said, you have been subject to abuse, depression, anxiety and also the issue of trichotillomania, referred to in paragraph 8 of such report.

34The forensic history is remarked upon and the testing is confirmatory of your background.  Your risk of recidivism, obviously upon the background, places you in a higher risk, as set out in paragraph 39 of such report. By way of conclusion, Ms Scally said:

"Mr Nelson presents with clinical evidence supporting diagnoses of Substance Use Disorder (In Controlled Environment) and Personality Disorder. He also suffers from significant anxiety, and ongoing trauma symptoms that warrant further assessment to determine treatability… [He] has experienced periods of heightened paranoia as a result of acute and secondary effects of illicit drug use." 

35You experience, as I have already remarked, a pervasive distrust of others in keeping with your prominent antisocial personality traits.  There are, in your background, though not clearly diagnosed, multiple risks because of the assaults on yourself, as to some form of acquired brain disorder.  All of those matters I take into account in regard to your sentencing.  Your performance in gaol at least gives some encouragement.

36Exhibit 4 in particular is of some real encouragement, given the propositions put by Ms Dawson as to your potential rehabilitation.  Given your background, 11 clear screens from 04/10/18 to 11/02/19, are encouraging indeed.  As I said, your relationship with Ms Ryan and your current fatherhood are other factors that are in your favour, as is the support of your partner, and indeed the tendering of her mother's letter, which struck me as an honest appraisal of you.

37Despite your background, Ms Bashtonag's mother’s view, Ms Ryan, was that you were a person who she thought may hopefully, if you can give up the drugs, have a future.  One has to of course be guarded about that.  You have had, throughout Court, good support from your partner and Ms Ryan.  I note the submissions that you are in protection, and are doing your time in a hard way, I accept that time spent in gaol for you will be more onerous because of that. 

38I think your counsel rightly accepted that the proposition for you as to rehabilitation has to be seen as guarded. But it is noted that at least in your record of interview and your comments made to Dr Scally, there is some recognition, regret, and perhaps some self-reflection and insight.  As I say, if you want to enjoy the joys of your child and partnership, then clearly you have got to change your way.

39I take into account of course the admissions made, the plea of guilty.  The plea of guilty is utilitarian and requires me to administer an appropriate discount to you.  I accept that, in your case, it is an indication of remorse. The genuine regret shown on p.7 of Dr Scully's report as expressed by you and just referred to by me, is again something positive, which can be taken into account with the screens that have been tendered in this Court.

40It is necessary of course for this Court to take all of those matters into account in determining a sentence. I also must take into account insofar as Charge 2 is concerned, the circumstances which led to this offence being incorporated into the Crimes Act. In Hansard, in the Crimes Legislation Amendment (Protection of Emergency Workers and Others) Bill in 2017, the Minister for Police noted that the Government intended to fast track new laws to specifically address incidents where offenders use motor vehicles to harm police and emergency vehicles, and to introduce just this offence where such emergency workers are recklessly exposed to risk.  The Minister said that the intent for such offending was to require the imposition of a custodial offence, and that where appropriate these crimes should be prosecuted simultaneously, requiring the imposition of a custodial sentence. Further steps were taken in regard to such offences, to ensure that where gaol is imposed in regard to Charge 2, such must be served cumulatively.

41In determining the appropriate sentence, I take into account all those matters, and the purposes for which such amendments were made to the Crimes Act.  Mr Nelson, if you would stand up please.

42In regard to the indictment, the first charge of theft of a car, I sentence you to a period of imprisonment of two years.  In regard to the aggravated offence of recklessly expose emergency workers to risk, I sentence you to a period of imprisonment of three years.  In regard to the offence of reckless conduct endangering life, a period of two years imprisonment and in regard to Charge 4, handle stolen goods, a period of two years imprisonment.

43Insofar as the indictment is concerned, I set as the head sentence, Charge 2, which is three years.  I add to that a further year of the sentence imposed for Charge 3 to be served cumulatively upon Charge 2.  In regard to Charges 1 and 4, I order that in each instance, six months be served cumulatively with the other sentences imposed and periods of cumulation imposed.  That therefore makes the head sentence of three years, an additional year for Charge 3 and two periods of six months for Charges 1 and 4, making a total effective period of imprisonment of five years on the indictment.

44Insofar as the summary charges are concerned, Charges 12, 13 and 16, being three charges of drive while unlicensed, I sentence you on each charge to a period of two months’ imprisonment.  On Charges 15 and 24 of committing an indictable offence while on bail, I sentence you to each charge by way of two months’ imprisonment.  To Summary Charge 17, resist emergency worker, a period of imprisonment of two months.  Summary Charge 21, fraudulently alter a numberplate, two months’ imprisonment.

45Charge 22, possession of a controlled weapon, nine months’ imprisonment.  Charge 27, drive when directed to stop by police, three months’ imprisonment.  Charges 28 and 31, use unregistered car on each a penalty of ten penalty units.  Insofar as cumulation is concerned, I order that 3 months of the sentence imposed on Charge 22 be served cumulatively upon the head sentence, I order that one month of each of the prison sentences imposed on Charges 12, 13 and 16 be served cumulatively, and one month of the sentence imposed in Charges 15 and 24 be served cumulatively.

46So, that, on top of the total effective sentence in the indictment, there will be an additional three months for Charge 22, an additional three months, being the one month each for Charges 12, 13 and 16, and an additional two months for Charges 15 and 24, all to be served cumulatively upon such sentence and with each other. Thus making a total effective period of imprisonment imposed for the indictment and the summary charges, of five years and eight months.

47I fix a minimum period to be served before being eligible for parole of four years and four months.  In regard to that sentence, I declare that the 302 days you have served as presentence detention be deemed as service of this sentence and order that a declaration to that effect be noted in the records of this Court.

48It is appropriate for me, Mr Nelson, to explain to you of the benefit of your plea.  I intend to make the declaration insofar as the ultimate sentence and minimum period.  So that under s.6AAA I declare that, had you not pleaded guilty, the sentence I would have imposed on you would be a sentence of seven years, with a minimum to serve of five years and two months imprisonment.

49So, that the benefit you get as against that sentence, is that the maximum I have imposed upon you because you have pleaded guilty is five years and eight months with a minimum period of four years and four months.  In regard to your driving licence, Charge 2 being a serious motor offence requires a minimum period of 24 months' cancellation, which I so order.

50Charge 27 requires a minimum period cancellation of 12 months, which I so order.  And I think that is all I need to attend to, unless Madam Prosecutor or Ms Dawson, I have got something wrong somewhere and you can assist me in that.

51MS GODING:  Your Honour, the only matter or matters that I would raise is in relation to the aggravated offence of exposure emergency worker to risk ‑ ‑ ‑

52HIS HONOUR:  Yes.

53MS GODING:  ‑ ‑ ‑ and the section numbers referred to by Your Honour there.

54HIS HONOUR:  317AF(1)(b) and 317AE and 317AG.

55MS GODING:  Yes, Your Honour.

56HIS HONOUR:  Yes.

57MS GODING:  I think, I wasn't sure whether AG was mentioned.

58HIS HONOUR:  I'm not sure.  I mightn't have.  It was three dimension.

59MS GODING:  Yes.  So, that is the other one.

60HIS HONOUR:  Can I also indicate - I had some issue as to how do I deal with the provision as to cumulation set out in 16(3D).  It seemed to me the best way to do it was to make that the head sentence.

61MS GODING:  Yes, Your Honour.  No, issue's taken with the structuring of that by way of cumulation.

62HIS HONOUR:  And I don't have to - then totality's not an issue.

63MS GODING:  Yes.

64HIS HONOUR:  Well, sorry, of course totality's an issue, but I don't have to balance that problem.

65MS GODING:  Yes.  The other one was the - that exact provision referring to imprisonment being required was s.5(2H), not s.52.

66HIS HONOUR:  Yes, I'm sorry, I've written.  It is.  It's my writing.  I do apologise.  Section 5(2H).

67MS GODING:  Yes, Your Honour.

68HIS HONOUR:  Yes, exactly.  Thank you for those corrections.

69MS GODING:  They were the only matters to raise.

70HIS HONOUR:  Mr Nelson, got to change your way, all right?  You got someone looking there that you can base your life on.  I understand you've had a tough time, but you've got to change.

71OFFENDER:  It's, um, the whole, this whole problem leading up why I'm in gaol.  It's - there's a lot more to it and it's and never came, you know, like, is ‑ ‑ ‑

72HIS HONOUR:  Well, it's - I'm sure there's a lot more to it but in the end, you can't behave like you do in the community.

73OFFENDER:  It was on the start of that day.  I didn't - leading up (indistinct words).

74HIS HONOUR:  Yes, well I don't accept that.

75OFFENDER:  I know you don't accept but there's - there's - what about the - the - the footage of me pushing the car.  Them pulling up no sirens going.  Where they were situated.  Another thing is when, um, when I drove off, the sirens were activated.  I noticed in the rear vision mirror that they were police cars.  I rang the police.

76HIS HONOUR:  Police say those sirens were activated as you came towards them.

77OFFENDER:  No, but there - there's should be a log on their computer showing and there's footage of where I was pushing the car, showing that the four-wheel drive and the van had no police sirens on.  There's actually footage from the workshop showing me pushing the vehicle.

78HIS HONOUR:  Well, I've analysed all that and I don't accept that excuse.

79OFFENDER:  Well, none of this was brought out ‑ ‑ ‑

80HIS HONOUR:  Well, it was.  It was put and I didn't - and I don't accept it.

81OFFENDER:  The footage - The footage hasn't been ‑ ‑ ‑

82HIS HONOUR:  Your counsel put it.

83OFFENDER:  The footage hasn't been viewed on that.  You know, like ‑ ‑ ‑

84HIS HONOUR:  I don't think we've had any footage viewed.

85OFFENDER:  That's right.  Like, there's a lot more that hasn't been - there's photos of me with all stab wounds all over me.  Yes, I said that was self-inflicted because I didn't want police involved.  I didn't want them to - people, which they got arrested a couple days ago over other matters.

86HIS HONOUR:  Well, I don't think it was you who had said it, was it?  But anyway, I don't want to get anyone into trouble but I think it was your partner who said it.

87OFFENDER:  'Cause I - 'cause I was - I was - I told people if police ask anything because I didn't want repercussions.  This problem started from prison.  When they took my cars, they bashed me in gaol.  They made my sister bring drugs in the jail.  I've got all that ‑ ‑ ‑

88HIS HONOUR:  I'm sure those - you have those problems but what I found is that you knew those - they were police on that day.

89OFFENDER:  (Indistinct words).

90HIS HONOUR:  Well, it's not going to change my mind.  If you're unhappy about it, your counsel will advise you.

91OFFENDER:  I'm - look, I'll be appealing it, so ‑ ‑ ‑

92HIS HONOUR:  Yes, well, you are fully entitled to do that. 

93OFFENDER:  Yeah, I am.  (Indistinct words).

94HIS HONOUR:  All right, well good luck anyway.

95OFFENDER:  Yeah, (indistinct words).

96HIS HONOUR:  Yes.

‑ ‑ ‑