Director of Public Prosecutions v Nieto

[2018] VCC 1988

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01322

DIRECTOR OF PUBLIC PROSECUTIONS

v

MANUEL NIETO

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2018
DATE OF SENTENCE:	22 November 2018
CASE MAY BE CITED AS:	DPP v Nieto
MEDIUM NEUTRAL CITATION:	[2018] VCC 1988

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	OPP
For the Accused	Mr V. Peters	VLA

HIS HONOUR:

1Manuel Nieto, you have pleaded guilty to two charges of theft, one charge of reckless conduct endangering life, one charge of causing injury recklessly and two charges of common assault.

2The maximum penalties for these offences are for theft, ten years' imprisonment, reckless conduct endangering life, ten years' imprisonment, recklessly cause injury, five years' imprisonment, and common law assault, five years' imprisonment.

3You have also pleaded guilty to the following related summary offences.  Unlicensed driving, (maximum penalty of three months' imprisonment), trespass, (maximum penalty of six months' imprisonment), failing to stop after an accident (as a second offence, a minimum four months' imprisonment with a maximum of two years' imprisonment) and the charge of driving under the influence of a drug, (as a second offence, a maximum penalty of 12 months' imprisonment).

4Your offending was detailed in a document headed "Crown Opening on Plea" which was read in open court by the prosecutor. It is not my intention to repeat all that he said.  Your offending can be summarised as follows. 

5At about 7.10 am on 4 February 2018 you stole a motor vehicle from Coles Express in Ardeer. The driver had left the keys in the ignition while he went inside to purchase a coffee.  You entered the car and drove it away.  You were an unlicensed driver and you were under the influence of amphetamine.

6Over the next one and a half hours or so you drove the vehicle erratically and at excessive speed while travelling from Ardeer to Geelong and beyond. At the Deer Park Bypass you veered sharply into the left lane and then veered into the emergency lane to pass vehicles in front of you.  You did this reckless manoeuvre at high speed.  On the Western Ring Road you were detected travelling at a speed of 192 kilometres per hour.

7You drove onto the Princes Highway and as you headed towards Geelong you drove erratically in the emergency lane through an area of roadworks narrowly avoiding other vehicles.  At Avalon your speed was detected at 206 kilometres per hour.

8Your manner of driving alarmed members of the public who contacted the police.  You drove into Geelong and travelled along La Trobe Terrace, a busy road with three lanes for traffic travelling south at excessive speed.  At the intersection with Gordon Street you sharply moved from the right lane to the left lane nearly losing control of the car.

9You drove through a red light at the intersection. You accelerated along the road driving through three more red lights. Your speed was recorded at
158 kilometres per hour in a 70 zone.  At 8.30 am you drove through a red light at the intersection with Vine Street.

10You continued onto the Surfcoast Highway at excessive speed.  At 8.30 am you stopped at a petrol station and put $90.26 worth of petrol in the tank.  You drove off without paying.  You drove west along Lower Mount Duneed Road, a single lane carriageway in both directions at excessive speed.

11As you approached the roundabout with the Surfcoast Highway you overtook a number of vehicles that were slowing down.  You hit a traffic island and entered the roundabout at a speed estimated to be in excess of 100 kilometres per hour.

12You failed to give way to another car that had already entered the roundabout.  You collided with that car.  The driver of that car had his son aged 13, his daughter aged 11 and another 12 year old boy as passengers.  They were all taken to Geelong Hospital by ambulance. Remarkably the driver of the other car was the only person who suffered physical injury.  I will talk more about his injuries a little later in these remarks. 

13You failed to stop after the accident, steering the stolen vehicle onto the Surfcoast Highway where it came to rest against a fence 150 metres south of the roundabout.

14You got out of the car and ran off.  You climbed the fence of a nearby property and entered the yard.  Two adults and three children aged seven, 11 and 13 lived in the house on the property.  The female resident called out to you asking if you were okay.

15You said that you had been in a bad car crash and needed her help.  She asked you to wait a moment.  She went to get changed.  While she was in her bedroom she heard the front door open and you entered the house.  You spoke to the victim's 13 year old son and said you had a gun.

16The child's mother came out of her bedroom and told you that she wanted you out of the house.  You said, "I can't leave this house".  At this time her husband, who had heard the commotion, came and joined his wife.  You then went into the kitchen and armed yourself with a long bladed knife.  You were asked to put the knife down and you said, "I won't harm you but if it comes to it it will be a hostage situation".

17You walked around the house checking other rooms and checking where the children were.  At one stage you went into the bathroom and wet your hair under the shower.  Whilst you were doing that the children were ushered out of the house by their mother and into the granny flat.

18The children's father offered to take you to the train station and you eventually agreed with this course.  Not long after leaving the premises you were arrested by the police.  You were taken to the Geelong Hospital and saw a physician who noted that you had no injuries and that you were fit for interview.

19A sample of your blood was taken and upon analysis was found to contain methylamphetamine at a rate of approximately 0.15 milligrams per litre.  You made a no comment interview when interviewed.

20The driver of the vehicle you collided with has made a victim impact statement.  He suffers from ongoing neck and back pain that requires regular physiotherapy.  He was about to enter a new position of employment but had to let go of the opportunity because of the collision.

21In addition his emotional wellbeing has been affected.  He is anxious and he ruminates about what could have happened to the children in his vehicle.  His feeling of safety has been compromised and he is angry at what you did. 

22The adults in the home that you entered as a trespasser have also provided impact statements.  They have been profoundly affected by your criminal behaviour.

23Their main concern is the impact of the events upon their children, one of whom is seeing a psychologist. One victim feels that you took her children's innocence away.  She describes the events of that day as the most terrifying experience of her life. She has also said this:  "Luckily we were not hurt physically, but that was only due to my background as a nurse having encountered psychotic patients in the past and my husband's calmness".  I will return to this issue of your psychiatric state a little later.

24The victim is also very concerned at the impact of your offending on her husband who has been unable to work since.  He explains in his statement that he is working with a psychologist to try and come to terms with the impact of the offending upon him, his children and his wife.

25Mr Nieto, this is serious offending.  The driving involved a prolonged period of endangerment occurring over a period of one and a half hours or thereabouts and involved high speeds, erratic driving and running red lights.  It endangered the lives of innocent road users and culminated inevitably with a collision when you failed to give way at a roundabout. The driver of that other vehicle has suffered physical and emotional injury.  It is only through the most remarkable good fortune that no person was injured more seriously.  You failed to stop after the collision, you were an unlicensed driver and you were under the influence of drugs.  After the collision you entered as a trespasser the home of a woman who offered to assist you.  You armed yourself and threatened her and her husband.  You did so knowing there were children in the house.  It was a terrifying experience for the residents.

26General deterrence, that is the need to deter others from behaving in the way that you did, is a highly relevant sentencing consideration in this case.  Just punishment and denunciation are also relevant considerations.

27You have a number of relevant prior convictions.  They commence with an appearance at the Wagga Wagga local court, four offences of car theft, unlicensed driving, drive under the influence of a drug, driving in a manner dangerous, driving at a speed dangerous and not stopping after an accident. You were 18 at the time.  There are many appearances after that date in various New South Wales courts.  There are some more recent appearances in Victorian courts.  Your criminal history means that specific deterrence and community protection are also important sentencing considerations.

28I now move to matters relevant to your background and matters in mitigation.  You are a 40 year old Aboriginal man.  Your childhood and adolescence were marked by hardship, depravation and disadvantage.  You do not know your father.  You were taken from your mother when you were 11 years old and made a ward of state in New South Wales. You had multiple foster placements before being placed in a boys' home. 

29You commenced using alcohol and cannabis as a nine year old and your education ceased at Grade 5 level.  You began using heroin as a 15 or 16 year old and eventually moved to the drug ice.  Drugs have blighted your life.  You have spent much of your life in detention or in prison.

30You have had past admissions to psychiatric facilities.  Dr Leon Turnbull, an occupational and forensic psychiatrist who assessed you on 8 November 2018, says this in his report:  "The notes from St Vincent's Sydney initially provide a diagnosis of drug induced psychosis in 2009 and in 2012 he was hearing voices to kill somebody.  By 2016 the diagnosis had changed to paranoid schizophrenia.  In 2017 he presented to police stating he was going to kill his girlfriend as he was in danger from bikies.  Police took him for a health assessment where he was psychiatrically hospitalised".

31The 2016 diagnosis and the events of 2017 are important because they help provide a context for what you have said about the offending.  You told Carla Lechner, a clinical psychologist, who assessed you on 11 September 2018 that at the time of these offences you were acting to save your life.  You told her that you had been in a relationship with a woman who took out a life insurance policy on your life. She had connections to bikie gangs who planned to kidnap and murder you, but make it look like an accident.  On the day of the offences you got the heads up that they were about to kill you and that you had to get away.  You stole a car and travelled at high speed to lose the black vans that were following you.

32Based on her assessment of your mental state Ms Lechner formed the opinion that when you committed these offences you were suffering from a delusional disorder and that whilst your persecutory and paranoid thinking is likely to have been precipitated by your drug use, your symptoms have not subsided during your months in custody, nor during your abstinence from drug use.

33Dr Turnbull diagnosed you nearly two months after Ms Lechner.  He also concluded that you are currently suffering from a delusional disorder, namely and ongoing belief that you are a target to be kidnapped by bikies and that you will be murdered so they can make money from a life insurance policy.

34Dr Turnbull also notes that the delusion persists even though you have been in custody for many months and not been using the drug ice.  Dr Turnbull states that the condition was present at the time of the offending and probably exacerbated by ice use.

35Given these opinions I am satisfied that you were suffering from a mental illness at the time of the offending and that the illness contributed to the offending.  However, it is also clear that your illness was not the only contributing factor.

36The drugs you had consumed either precipitated your persecutory or paranoid thinking (Ms Lechner), or exacerbated your delusional disorder (Dr Turnbull).  In these circumstances there can only be a modest amelioration of sentence because of the application of the Verdins principles.

37Your disadvantaged background is also a matter that mitigates sentence.  However, it must be acknowledged because of your background you have found it enormously difficult to stop offending.  In these circumstances I must carefully balance the mitigating factor of your background against the weight that needs to be given to community protection.

38You have entered an early guilty plea.  It is an acceptance of responsibility for your offending.  It has saved the victims from the trauma of giving evidence and also saved the community the cost and expense associated with a criminal trial.  You will be given credit for all these matters.

39You consented to having the charges heard in the Koori Court.  In doing so you agreed to participate in a process that involves appearing before elders from the Aboriginal community.  The process is described as a sentencing conversation.  It was apparent from your participation in the process that you do have some insight into the need to address your drug abuse problem and that you are remorseful for your offending behaviour.

40I give you credit for your participation in the Koori Court.  The Court of Appeal has recognised that the sentencing conversation in the Koori Court is designed to further the reformation of an Aboriginal offender.  Participation in the process is not easy, indeed it is challenging.  Your participation in the process is a factor relevant to sentence.

41Finally, in determining your matter I am required to apply the principle of totality.  This means that in sentencing you for all these offences I am required to ensure that the total sentence remains just and appropriate for the whole of your offending. I have also taken care to avoid any double punishment in respect of the charges. 

42Because of your significant criminal history I am very guarded about your prospects for rehabilitation.  I note Dr Turnbull’s opinion that you suffer from a mental illness that is notoriously difficult to treat. However, he also makes it abundantly clear that you do need treatment.  He says that forensic prison mental health services need to be alerted to your need for treatment.  I will endorse the record of this order accordingly and arrange for a copy of Dr Turnbull's report to be provided directly to the prison authorities.

43Mr Nieto, would you please stand?  You are sentenced to the following periods of imprisonment on the charges on the indictment.  Charge 1, six months, Charge 2, three years, Charge 3, three months, Charge 4, 15 months, Charge 5, nine months, and Charge 6, nine months.

44On the summary charges you are sentenced as follows.  Unlicensed driving, one month's imprisonment, driving under the influence of a drug, four months' imprisonment, failing to stop after an accident, four months' imprisonment, and trespass, two months' imprisonment.

45I order one month of the sentence on Charge 1, six months of the sentence on Charge 4, four months of the sentence on Charge 5, four months of the sentence on Charge 6, one month of the sentencing on failing to stop after an accident, and one month of the sentence for trespass be served cumulatively upon each other and upon the sentence imposed on Charge 2.

46This makes a total effective sentence of four years and five months.  I fix a minimum term of three years before you will be eligible for release on parole.  I declare 291 days pre-sentence detention.  If you had pleaded not guilty and been found guilty after a trial I would have sentenced you to a total effective sentence of five years and ten months with a minimum term of four years and five months.

47On Charges 1, 2 and 4 on the indictment and on the summary charges of unlicensed driving, drive under the influence of a drug and failing to stop, I order the cancellation of all licences. You are disqualified from driving for a period of five years.

48Pursuant to s.464ZF of the Crimes Act I order that you undergo a forensic procedure for the taking of a scraping from your mouth. If you fail to cooperate in the taking of the sample the authorities may use reasonable force to obtain an appropriate sample which may include a blood sample.

49I make this order because of the seriousness of the offending, because of your prior criminal history and also because the making of the order is in the public interest. 

50Mr Nieto, basically what has happened is you have got a total effective sentence of four years and five months with a minimum term of three years and you have served 291 days pre-sentence detention. Do you understand that?  Just take a seat there for the moment.  Does that cover everything, gentlemen?

51MR ROPER:  Yes, Your Honour.

52MR PETERS:  Yes, Your Honour.

53HIS HONOUR:  Mr Nieto, can be removed, thank you.

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