Director of Public Prosecutions v Nixon
[2020] VCC 553
•1 May 2020
m
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 19-02158
Indictment No. K11959187
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Jesse NIXON |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | April 30 2020 | |
DATE OF SENTENCE: | 1 May 2020 | |
CASE MAY BE CITED AS: | DPP v NIXON | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 553 | |
REASONS FOR SENTENCE
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Catchwords: Theft of cars (x 2); Aggravated burglary (x 2) and related thefts x 2 (charge 6 being another theft of car); aggravated intentional exposure of police member to risk by driving (x 2), reckless conduct endangering serious injury; possession of drugs of dependence (x 2) . Summary offence: Drive whilst disqualified. 19 at time of offending. 20 as at date of sentence. On CCO for related offences at time. Relevant criminal history.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Bourbon | Office of Public Prosecutions |
| For the Accused | Ms C. Randazzo | Rainer Martini & Associates |
HIS HONOUR:
1 Jesse Nixon, yesterday, you pleaded guilty to a number of charges on the indictment filed before this court. Those charges are three charges of theft of a car, two charges of aggravated burglary, a charge of theft of a handbag, two charges of aggravated intentional exposure of police members to risk by driving, a single charge of reckless conduct endangering serious injury and two charges of possession of drugs of dependence. In addition, you have pleaded guilty to a summary offence of drive whilst disqualified.
2 You have admitted a criminal history of relevance to my task. You were on a community corrections order at the time of these offences. Indeed, for the first offence, it would seem you were also on a youth supervision order.
3 You have recently turned 20 years of age but were 19 at the time of these offences last year. You are turning 21 on 2 March 2021.
4 The plea in mitigation was conducted yesterday by Ms Randazzo who acted on your behalf.
5 The aggravated burglary in each instance was constituted by a burglary with intent to steal with the feature of aggravation being the presence of a person within the premises at the time of entry and your state of mind as to that fact. The indictment sets out the features that make the intentional exposure offence an aggravated offence.
6 The summary sets out the correct maximum penalties so I am not going to repeat them all. However, you should take note of the fact that aggravated burglary has a 25 year maximum term of imprisonment and aggravated intentional exposure by driving has a 20 year maximum term which tells you something about how seriously Parliament views these sort of offences.
7 I make it clear that I will act on the lower penalty in relation to each of the drug possession charges as there is no suggestion at all that the possession was in any way connected to trafficking in the substance. I am satisfied on the balance of probabilities that it was not and hence the lower penalties apply. I doubt if I will mention those offences again. They are the least of your worries.
Facts
8 The prosecutor Mr Bourbon appeared to prosecute at the plea yesterday. A written summary of prosecution opening dated 1 April 2020 was relied upon here. Normally it would be read in open court. No one saw any need for that opening to be read aloud in open court given;
(1) there was no member of the public in the court;
(2) the logistical strains existing in relation to WebEx hearings and the desire to limit the duration of hearings in these COVID-19 times and;
(3) the fact that it was an agreed summary and would be exhibited as part of the materials.
9 I will not go beyond the agreed summary other than having regard to the statements dealing with the order of the spraying of the capsicum spray and the issue of Sgt Harnetty standing next to an unmarked car but one with flashing red and blue lights. Those matters were raised in the course of discussions.
10 I see no need then to describe the full factual setting in these my reasons. This was plainly serious offending as was conceded by your counsel.
11 Very briefly stated, you committed a series of crimes of varying levels of seriousness in the period 3 June 2019 to the 25 July 2019. It started with the theft of a car on or about 3 June. That car was stolen from where it was parked out on the street in Clayton. The next car was taken in a residential burglary on 5 July but you are not charged with that taking. The charge against you is one of theft in that you were seen driving that stolen Mercedes Benz on 9 July. That same car was also observed driving erratically on the night of the 22 July. It had stolen registration plates affixed. Police officers followed you to the Manhattan Hotel. You left the car and went inside the gaming venue. The police were planning to make an arrest and they placed deflation devices under the tyres. You came out a short time later with your girlfriend and got into the car and then drove off. The tyres were punctured by the stop sticks but that did not stop you from driving away a short distance and then abandoning the car and running from the scene. Your female passenger did likewise but she was arrested. You escaped and the Airwing was brought in. Whilst attempting to evade the police you entered as a trespasser a unit in Irvine Street Mitcham which was occupied by Ms Emma Weir. You stole her handbag. She was not alerted to your entry as you came in through the back door and she very fortunately was at the front of the house in her bedroom watching TV. Thermal imaging taken from the air wing disclosed your entry and exit.
12 You then entered another residential property as a trespasser, this time a house at 8 Patrick Court in Mitcham and stole the keys to the families Mazda which was parked in the garage. The keys were taken from inside the house. The owner and his family were inside the house. The owner who was sitting at the dining table heard a door leading to the garage close. He went to check on the noise and saw his garage door opening with you standing at the driver’s side door of his car. You got into the car and the owner came around and tried to open the car door and you threatened him. That is just part of the context and you are not charged with, or to be sentenced by me for making a threat or for that matter committing the offence of robbery. I am dealing with you for the theft of the car. Police had attended and entered the garage and tried to stop you. They demanded that you stop. You did not. Instead, you reversed quickly and Senior Constable Gatehouse had to take immediate evasive action in the tight confines of the garage to avoid being hit by the vehicle. You reversed into the half open garage door and through it and as you did so you were sprayed with capsicum spray. You then reversed down the drive and across the court and smashed into a marked police car. You then put the car into drive and accelerated quickly down the street towards Detective Senior Constable Harnetty who was standing beside his unmarked police car. He also had to take swift evasive action to avoid being struck by you. You left the scene at pace. That was at around 8.27 pm. The Airwing footage of all of this is before me marked as Exhibit B. The car you were driving was captured on that Airwing footage for well over an hour as you drove around Melbourne.
13
At about 9.41 pm you were driving that stolen car on Springvale Road and you were behind another motorist who was travelling at, no doubt, what was an appropriate speed. At speed, you crossed entirely onto the wrong side of the road and travelled at speed towards an oncoming car driven by
Kung Siew. He braked heavily to avoid a serious head on collision. Another motorist travelling behind him also had to take evasive action and there was a collision between those two vehicles. You continued on your way. You were disqualified from being behind the wheel of any car. You were disqualified from driving for 12 months by a court in May 2019 so shortly before these events.
14 You were arrested on 25 July and found to be in possession of small quantities of cannabis and 1,4-Butanediol. You made some admissions, a number of denials and a large number of no comment answers as was your right.
15 You have been in custody since your arrest on 25 July of last year.
16 You pleaded guilty at a committal case conference.
Impact
17 Detective Sergeant Harnetty has made a victim impact statement. He did not want it read aloud and so I infer he may not wish me to set out much of the detail of the impacts in my reasons. This was serious offending. He was placed at risk by you. He was just doing his job, one that is difficult enough at the best of times for serving members of the Police Force. Your crime committed upon him has caused him to reflect on the wisdom of continuing on in the job. He has set a retirement date. He felt shock and fear at the time but once that subsided he felt anger as to your placing him in that dangerous position. I take into account the impact of your crimes here. I do not have impact statements in relation to the other victims but I hardly need them. Aggravated burglary is notorious for causing a sense of loss of security. The motorist who was faced with your erratic driving had to take urgent evasive action to avoid a serious collision with your car. That sort of thing is obviously frightening. The theft of a car causes impact of that there can be no doubt.
Mitigation
18 Your counsel Ms Randazzo raised a number of matters in mitigation. She had prepared a written outline dated 29 April which was marked as Exhibit 1 on the plea. Your background was mentioned in many of the written documents filed on the plea. She placed before me a number of documents including two reports from a psychologist Mr Simmons, a report from a neuropsychologist Ms Prado, two judicial monitoring reports from Corrections as well as a letter from your mother and one from you. Ms Randazzo made submissions about the offence seriousness and the relevant sentencing purposes. She also made submissions as to your prospects of rehabilitation.
19 She relied mainly upon:
· Your guilty plea;
· The stage of that plea;
· The presence of remorse;
· Your youth;
· An increased custodial burden by virtue of the COVID-19 virus and its impact upon the management of prisoners in this state.
· She argued that one of the principles from Verdins applied here, being the fifth limb from that case.
20 She conceded that there was no ability to avoid the operation of s.5(2H) of the Sentencing Act. She stated that there were no exceptions made out here and that a combination type sentence hence was not open. There had to be confinement for the two category two offences. She went further and in fact conceded the inevitability of terms of imprisonment and of a dimension requiring the fixing of a non parole period but she urged the court to provide for the possibility of a lengthy period on parole.
Prosecution
21 Mr Bourbon, who appeared on behalf of the Director of Public Prosecutions placed before me some detailed sentencing submission marked as Exhibit D. I asked Ms Randazzo and she told me that she did not take issue with those submissions. As a result I will not set them all out. They were not controversial and they went to some of the factors of objective seriousness, some of the matters in mitigation and some of the relevant sentencing purposes in play in this case. The Director argued that a term of imprisonment was warranted here owing to the serious aspects of some of the offending and the relevant criminal history. Your own counsel of course had conceded as much as well as conceding that a non-parole period would be required here. The Director accepted that the fifth limb of the case of Verdins would likely have some role to play but challenged that there was any basis to find any reduced moral culpability on the first limb. However as became plain, Ms Randazzo was not relying in any way on any Verdins limb one reduction, there being no realistic connection between any condition and your offending.
Guilty plea
22 I turn now to the matters raised in mitigation by your counsel. I apologise for the length of these reasons but it is important that you understand, and others for that matter, what matters I take into account in coming to the ultimate sentence in this case.
23 The first of the matters I deal with is your guilty plea. You have pleaded guilty and you have done that at the earliest opportunity. That is important. I take those two matters into account in mitigation of sentence. You have taken early responsibility for your offending. Witnesses have as a result all been spared the experience of giving evidence. That is important. Giving evidence and reliving an event can be unpleasant and stressful in itself and the various victims have all been spared that experience at least. The community has been saved the time, cost and the effort associated with the conduct of a committal hearing in the Magistrates' Court or a trial up in this court. You have in these ways facilitated the course of justice. I must reward you for your decision to plead guilty and at the early stage which you did and I am required to pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury.
Remorse
24 Your counsel suggests that there is some actual remorse in this case. I must say, if I only had your police interview to go on, I would have serious doubts on that score as your interview was hardly dripping with remorse. However, it was your right to answer as you did and anyway, that was very many months ago now. You have since been on remand for over 280 days. You have since pleaded guilty and you have done that at a very early stage. A guilty plea is often indicative of some remorse. There are also some references to some remorse in the reports of Mr Simmons as well as suggestions of that to be found in your own letter.
25 I am prepared to find that you do feel some remorse for the crimes you have committed and I take that into account in your favour.
Background
26 I turn now to your background but I will do so only quite briefly. I have the first report of Mr Simmons which goes into quite some detail. I also have the report of Ms Prado and the letter from your mother. I have no reason to doubt any of this material but see no need to slavishly set it out in these, my reasons, which will be quite long enough as is. I accept the personal and family background placed before the court. Very briefly stated, you are now 20 years old born 2 March 2000. Your parents separated when you were relatively young and you were brought up by your mother. You have a close relationship with your mother and she is plainly supportive of you. You also have a younger brother. You have had no contact with your father for many years and your mother gives some description of the nature of her relationship with your father.
27 You had significant issues in schooling. These are referred to in the reports placed before me. In fact, Ms Prado had access to assessments conducted when you were very young and still at primary school. Your mother also comments on the difficulties at school, difficulties caused by your ADHD and oppositional defiant disorder. Additionally, it is plain enough that you do not function at a particularly high level though do not have an intellectual disability or acquired brain injury it would seem. You were expelled from school at a young age. Home schooling, your mother says, was a disaster. You are literate. You have never held down a job and drugs have been a massive problem for many years now. You have had a couple of intimate relationships that are spoken of in the reports.
28 You have mixed with undesirable influences and have offended for many years now. Since your remand in July of last year and until recently, you have been working in custody. You have done some courses and I am told you are drug free. All personal visits have been suspended owing to the COVID-19 response by Corrections and you have been spending a very sizeable period each day in lockdown as your letter discloses. It is not easy.
29 You have a criminal record. For one so young it is lengthy enough stretching back to June 2014. Much of the history arises from crimes committed by you as a child and dealt with in the Children’s Court. The criminal history is obviously relevant to my task. I am not going to conduct a complete audit of that history in these, my reasons.
30
On a large consolidation dealt with at Ringwood Magistrates Court on 15 May 2019 you received a combination sentence being 84 days’ imprisonment and a 12 month community corrections order. You had already served the 84 days so you were released that day. You were being judicially monitored with the first monitoring to take place on 27 June 2019. You failed to attend on that date. I note that the first charge on this indictment occurred on or about
3 June 2019. The other conduct took place on 9 July and then on 22 July and finally on 25 July. That combination sentence was imposed upon a consolidation of offences including theft, drive whilst disqualified, fail to stop on police direction, car theft and dangerous driving while pursued by police. Here you were stealing a car on 3 June, a little over a fortnight after entering the community corrections order. Here you were on 22 July driving when you should not have been, committing aggravated burglaries, stealing a car and then committing serious offences pertaining to the on-duty members who were simply doing their job and were placed at risk as a result.
31 Delving back a bit further in your criminal history, on 24 January 2019 you were dealt with at Ringwood Magistrates’ Court on a large consolidation involving car theft, multiple drive whilst disqualified, and car thefts, further car thefts, burglaries and attempted burglaries. You received 181 days’ imprisonment. Prior to that you had been dealt with in the Children’s Court in June 2018. This was the Ringwood Children’s Court on 27 June 2018 of that year. You were released on that day on a youth supervision order. The youth supervision order was for burglary, thefts including a car theft, drive whilst disqualified and criminal damage. I note you were seemingly still on that order as at the date of the first charge on this indictment.
32 Earlier still, on 21 November 2017 at the Ringwood Children’s Court, you received a four month term of detention for a large consolidation of charges including car thefts, deceptions, two charges of dangerous driving and a charge of dangerous driving whilst pursued by police. You also received a youth supervision order on that same day on a large consolidation of other offences, including burglaries and thefts and attempted thefts.
33 It is plain that you have just not taken any of the many recent chances extended to you by the courts. You just continue to offend.
34
I cannot ignore that history. Now, you do not fall to be sentenced a second time by me for those past crimes. You have been sentenced and have served those penalties and the past crimes do not aggravate the offending which I must deal with. It is however relevant to the assessment I must make as to the need to deter you and protect the community from you as well as to your prospects of rehabilitation. It is plain that I must seek to deter you and
Ms Randazzo concedes as much.
Youth
35 I turn now then to your youth. Ms Randazzo referred to the fact that you are still a young man. You are. You were only 19 years of age at the time of this offending and have only recently turned 20. It is true that you are still a young man but of course you are a very long way removed from being a youthful first offender.
36 Your youth is still though of importance for all the reasons set out in cases such as Mills and Azzopardi. Rehabilitation is still an important consideration here, though by no means the only consideration. The courts have long recognised that youthful offenders are less mature than adult offenders and generally less culpable.
37 Now of course you are an adult, but a young one. Youthful offenders are more likely to not actually really think through and consider the consequences of their actions and importantly, the law recognises that they are more amenable to change for the better. They can be rehabilitated, and though it is often forgotten, at least in the popular media, rehabilitation serves to actually protect the community. It is also recognised that prison can damage those prospects of rehabilitation as it can be and often is so corruptive of youthful offenders. Plainly, if it can be avoided it must be.
38 Accordingly, rehabilitation is important, and less weight is ordinarily to be devoted to punishment, deterrence and community protection.
39
Quite aside from your young age chronologically, there is some material in
Mr Simons report that deals with aspects of immaturity in your makeup.
40 Now these principles relating to the importance of youth do not apply automatically in every case in the same way. It is always important to consider the nature of the offences and the offender and the extent to which other sentencing purposes must be given some prominence. Some of the offences I am dealing with, especially the driving matters are often enough committed by youthful offenders. You have been given a number of chances by the courts and you have just not taken them. Deterrence is plainly of importance in this exercise. Generally speaking, the more serious the offence, the more weight will be given to other sentencing purposes such as punishment, community protection and deterrence, and with less weight afforded to rehabilitation and youth. Do not mistake me, your youth is still important and I do not lose sight of it in my sentencing task but as I have said already, you are a long way removed from being a youthful first offender.
Verdins and the various reports
41 I turn now then to the reports of Mr Simmons and Ms Prado. I am not going to sit up here regurgitating the portions of the reports relied upon. I have read them all and take them into account. I take into account also the Corrections reports. If I have not said already said so, let me say now that, I take into account your background as far as I am able to. It cannot have been easy growing up and attending school with the conditions which have been diagnosed. You were not dealt much of a hand in life, it seems to me and life has not been easy for you or for your mother.
42 To what extent though can any of these conditions lead to any additional mitigation here. The written submissions were a bit confused in this area. At one point your counsel in her written submissions seemed to me to be relying in a mitigatory sense on the fact that you were offending under the influence of drugs. That you were not as a result thinking in a rational manner. See paragraph 22. I asked Ms Randazzo about that and she made it clear that she was not relying upon that in any mitigatory fashion and nor could she. You probably were affected by drugs but undoubtedly that cannot be of any mitigatory value in this case. It is a rare case indeed for drug use to be greatly mitigatory and this is not such a case. I certainly will not flip it around though, as I might, and find that it was an aggravating feature. I do not treat it in that way either.
43 Upon reading the written submissions, I had some doubts as to how many principles from the case of R v Verdins were actually being relied upon. That is because there was talk in the written outline of reduction in your culpability and of the weight to be given to specific deterrence. See paragraph 27 and 29 of the written submissions. So I felt the need to ask and to have the position clarified. Ms Randazzo made it plain that she was relying only on the fifth limb of Verdins, that is an increased burden in custody here. She conceded that there was no intellectual disability and no realistic connection between any of the conditions referred to and the offending. Plainly that is correct. Indeed in his first report, Mr Simmons says as much. See paragraph 26 of that report. I am certainly not satisfied of the existence of any condition with any realistic connection to the offending which ought give rise to any Verdins allowance. Even had there been an intellectual disability or relevant condition, I would have still needed to make some judgment as to the extent of the role it would have played in your offending. That would be entirely speculative given the impulsivity brought about by drug use. Disinhibition brought about by drug use is not mitigatory. You describe to one of the authors taking cars for fun and to get around and offending in other ways to support your habit. You were affected by drugs but still committing rational offences. There is no suggestion that you did not know exactly what you were doing and it was both wrong and criminal. Though you are not functioning at a high level, there is no intellectual disability. I have said probably far more than I need to as your own counsel made it clear she was not relying upon the first limb in any shape or form. Nor was she suggesting any Verdins basis to reduce the weight to be given to general or specific deterrence. I asked and she was explicit in stating that paragraph 29 was not to be so interpreted. I will give appropriate weight to specific deterrence but it is conceded on the plea that there was no basis for any Verdins type moderation. The only Verdins limb relied upon was the fifth limb arising from the ADHD and the inability to be medicated and the suggested increase in your custodial burden flowing from that fact. The evidence on this is virtually non existent. What is the increased burden? The reports were pretty much silent on that score. The fact is you have for whatever reason chosen not to be lawfully medicated for many years now and there is no material put before me commenting on the circumstances of any true elevation in your custodial burden arising from that unmedicated condition. There is also some suggestion, in the report of Mr Simmons, of the ability to have a non stimulant medication that might give some benefit. The prosecution say it would be open to make some fifth limb allowance. That may well be an overly generous concession and one of course that does not bind me. However I do not doubt that you have ADHD, the evidence goes all in one direction in that respect. I am prepared in the circumstances to infer that it will have some role in increasing your custodial burden. So I will give it some weight.
44 I am not by the way saying that these various conditions are unimportant. Of course they are not. Your low level of functioning and the ADHD and oppositional defiant disorder have had a real and serious impact upon you and your mother. They were not matters of your choosing. I just have limits as to how they can be taken into account in a Verdins fashion. I take them into account in a non Verdins fashion, I make that very plain. The reports are of real use to me and set out some of your limitations and treatment needs into the future. What is plain is you will need structure and much support upon your ultimate release from prison.
Rehabilitation
45 Your counsel argues that you have some prospects of rehabilitation. It was conceded that this was serious offending committed by someone with a highly relevant recent criminal history. She argued though that you are still young enough to change and I am sure that is right. The question for me though is will you? That is not an easy question for me to answer. It is probably not that easy for you to answer. You took early enough responsibility for your offending and you do have some remorse, and they are good things.
46 You have been in custody already for a sizeable enough period and have been doing your best there. It is not easy being in custody at the moment owing to the conditions that prevail. The period of remand to this point together with the sentence I must pass will have a role in deterring you into the future. Your lack of response to past court orders of course is a worry. You had seen the inside of a youth justice facility and then a prison. You had been released onto a community corrections order for related offending shortly before you engaged in these crimes. Indeed, I note one of the Corrections reports discloses that you attended on that order for some induction process on the 22 July. Later that same day you were committing the lion’s share of these serious offences. You also have a long term drug problem and the ongoing mental health issues that are referred to. I take into account all the materials including your letter, a letter which expresses some developing insight and perhaps gives me a glimmer of hope. You have support from your mother which of course is a positive but I infer that you have always had her on your side and that fact has not stopped you from offending.
47 I can only be actually relatively guarded here. Your behaviour over the last few years gives me no great cause to be optimistic. Nor the reports placed before me which recognise some of the significant difficulties which lie ahead. There is obviously a real risk of re-offence here. You are still a young man and of course I hope you can live a very different life in the years ahead and not reoffend. Perhaps even find employment. That would be important. You need to be actually occupied usefully in your life. I am prepared, having read all the materials overnight, to find that you do have some realistic prospects of rehabilitation. It will not be easy for you. Those prospects will be conditional upon abstaining from the use of illegal drugs. If you are not able to do that, it will be more of the same. You will have virtually no prospects into the future if you continue to use drugs.
Increased burden: COVID-19
48 Your counsel submitted that the COVID-19 global pandemic will make your time in custody more difficult. Your letter speaks of some impacts already. That is no visits for some time and sizeable periods in daily lockdown. Also you have a concern for your mother’s predicament.
49 In prison, you will not have the ability of going where you want to go or distancing yourself from other people and that is because you will have no real autonomy as a prisoner.
50 The Court of Appeal first dealt with the issues of the COVID-19 virus in a decision of Brown [2020] VSCA 60 in late March. They correctly cautioned Judges against speculating. There have been many decisions since mainly in the Supreme Court but with a few brief cameos in the Court of Appeal. See for instance the cases of Broes [2020] VSC 128; McCann [2020] VSC 138; Tong [2020] VSC 141; Madex [2020] VSC 145; Sazimanoska [2020] VSCA 66 and Nguyen [2020] VSCA 76. And more recently Nicholls [2020] VSC 189; Diab [2020] VSC 196 and Thomas [2020] VSC 206. I have read all of those cases, I have had need to because they have all been raised over the last few weeks. Many of these decisions related to bail applications where there are slightly different considerations in play.
51 Having read them all, including the more recent ones, with respect the
Court of Appeal had it entirely right when they said what they said in Brown. It is still too early to know how this is all actually going to play out in the prisons. It is undoubtedly a rapidly evolving setting changing almost week by week if not day by day. Even in the space of a few weeks there have been massive changes in the outlook. Things are looking, I must say, far less gloomy than they were a month ago when the courts first pronounced on this topic. The curve has flattened out in the community and the rate of new infections is probably the envy of the world. There are at this stage as I understand it, no active cases within a Victorian prison.
52 What steps will be taken by Corrections if the virus hits the prisons? How many prisoners will be infected and how will those not infected be impacted? How long will any restrictive measures be in place including the ones you refer to in your letter? I cannot know any of the answers to those questions. I cannot know how it will all actually impact upon you. Only time will tell. I cannot know precisely how Corrections will manage this issue. There have been some publications in that regard. I cannot know what true impact it will have upon serving prisoners. I do not doubt though that the pandemic and the response to it will be generating stress amongst prisoners. Will there be lockdowns into the future and to what extent? How long will visits be on hold? Visits are important. Will there be allowances made by the authorities by way of declaration of emergency management days. Well again, I cannot know any of those things. I cannot speculate in my task.
53 I do not believe though that it is speculative for me to conclude that it is likely that lockdowns may well continue and that is because of course they are in place already and social distancing is said to be the key to avoiding the spread of this virus and how else really can that be instituted in a prison setting. I note that 14 day isolation of new prisoners is already up and running.
54 So how will it all play out? I do not know. What I do know though is that the virus itself and/or the prison authorities concern about the virus will likely limit social interaction, work opportunities and access to courses, education and programs for prisoners. As you point out in your letter, all visits have already been suspended and lockdowns are in play already, it is a pretty bleak setting that you are in. You are no longer employed either. So those things do not require any speculation on my part. They have occurred already.
55 As I said in the plea, there is probably never a good time to be in prison. However, this is certainly not a good time to be there. There are increased stresses and an increased custodial burden here for these various reasons and I take that into account.
The Offences
56 I turn now to the offences. As to the offences themselves, your counsel conceded that this was serious offending. Aggravated burglary is an inherently serious offence. So too the crime of aggravated intentional exposure to risk and the reckless conduct endangering serious injury. As to the aggravated burglary, there is an aspect of spontaneity in this case. You were committing the offences of aggravated burglary in the course of seeking to escape arrest. Plainly they were a very long way removed from the most serious examples of this style of offence. They fall at a relatively low level. But of course they are still serious offences. They are aggravated burglaries.
57 They were not confrontational aggravated burglaries. In the case of Meyers a number of considerations were set out by the Court of Appeal as to how to assess the seriousness of an aggravated burglary. Though not exhaustive, those considerations included the intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside, and whether the offender was someone of whom the victim was particularly frightened. Well, you were alone. There was an intent to steal not to assault. You hoped not to be detected, that much is plain. Entry was obtained without damage and not in the early hours. Indeed you were not even noticed by Ms Weir. You were not carrying a weapon. Here, unlike many aggravated burglaries, there was virtually no planning at all. Rather a residence was selected in the hope that entry would permit you to exit the difficult situation that you had placed yourself in by virtue of running from the stolen car. The aggravation arises from the presence of someone being in the house . As I say, it was spontaneous enough offending as you were looking to avoid arrest. You had no idea who was within the premises but in each case of course these were residential premises which you entered with the intent to steal.
58 It is always a serious offence to enter another person's premises as a trespasser and that is what you did. You intended to steal. Aggravated burglaries can and do escalate wildly out of control. It seems likely to me that you were looking to steal to make good your escape. You stole what you wanted. What you were after was a vehicle and hence keys to a vehicle. You succeeded in that endeavour after the second entry.
59 The three car thefts on the indictment are yet again instances of you simply taking what does not belong to you. You have multiple prior appearances for theft of cars.
60 The aggravated intentional exposure to risk offending is serious. It related to police members on duty trying to arrest you and the use of the car was dangerous. It exposed the members to risk. They each had to take strong and immediate action to avoid harm. Your counsel argues that the incident occurred quickly and after you had been sprayed with capsicum spray. The order of the spraying of the capsicum was that you were already reversing out and placing SC Gatehouse at risk before you were then sprayed but that really is by the by. That you were panicking and wanting to get away, I have no doubt at all. I have no doubt at all it was a swiftly moving event. This was serious offending no doubt produced by your desire to get away from the scene. That will be a common enough setting for this style of offence and one that is not mitigatory. Indeed it is even recognised in the provision that sets up the offence at s.317AD(2)(c). It is not mitigatory. Nor was it a matter of any note that Sergeant Harnetty may well not have been in uniform. You admit by your plea the requisite state of mind (knowledge or recklessness) as to his status as a police member and he was after all standing behind the door of an unmarked car with flashing red and blue lights.
61 This was very serious conduct.
62 We hardly need any reminding of the need to protect police officers as they go about their duties. Your mother in her letter refers to the tragic events that occurred last week, events that befell four members of the Police Force. In the last week alone we have had a startling example of how a seemingly routine job for a police member can end in total tragedy. The first of the funerals of the 4 members tragically killed last week took place yesterday. It is an inherently dangerous job, one which exposes serving members to risks aplenty without the additional risk of criminals driving in such a way as to avoid arrest and exposing the on duty member to that added danger. This offence; I say this offence, there are two of them here, are unmistakably serious. Parliament tells the courts that it is and takes it a step further by describing this style of offence as a category 2 offence. Absent a special reason, there must be confinement.
63 The conduct endangering serious injury offence was no minor example of that offence at all. Far from it. The footage shows how you were driving and how narrow the escape was. You chose to drive entirely onto the wrong side of the road at night. The oncoming motorist had to take and thankfully did take action to avoid a potentially catastrophic head on collision and that led onto a collision with another vehicle travelling behind him. Yet again, you had no business even being on the road at all and yet again you were. You were disqualified by a court from driving and yet you were driving a stolen car in such a dangerous fashion. This was not some case of theoretical risk that might have ensued. You were milliseconds from high speed head on impact as you played a variant of Russian Roulette by driving your car in the way that you did. You have a terrible driving record for one so young. The drug offences are not of any seriousness, in my judgement, and I shall scarcely mention them again.
64 That is not to endorse drug use, you plainly should not be using drugs and if you keep using drugs you will keep offending.
Purposes
65 I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose and I give it some weight, more than I would if you were older. But there are many other purposes as well.
66 Weight must also be given to specific and general deterrence, to protection of the community, to denunciation and to punishment.
67 I am required consider the nature and gravity of offending, the impact of the crimes and the maximum penalties. I must impose a just and proportionate sentence in relation to your offending. You must be punished, you know that. I must also denounce your conduct and that is an important consideration.
68 There are other purposes of sentencing that I have mentioned and one of those is the need for this court to seek to discourage or deter you from offending in the future. I clearly must give that principle of specific deterrence weight in my task. That is because of the nature of your offending and your past criminal history. Courts have tried to deter you in the past but have failed pretty spectacularly. Detention has not deterred you. Prison has not deterred you. Nor the community corrections order you were placed on weeks before this offending started. You need to get it into your head that you must not steal cars. You must not enter homes as a trespasser. You must not run from police. You must not drive when you have no business doing so. You keep repeating the same style of offences. You will eventually kill yourself or more likely some other innocent motorist if you keep behaving the way you have behaved in the past. I must try again to deter you. It is an important sentencing purpose and so too for many of the same reasons is my need to protect the community from you. That must be given some weight as well. But in each case though, I pay regard to your age.
69 General deterrence is another important consideration and that is conceded. This court must send a message to other individuals in the community who might be minded to commit these serious offences. As I say, aggravated burglary is a serious offence. This sort of conduct will not be tolerated by the courts. Frequently the Court of Appeal has told us how seriously aggravated burglaries are to be viewed. As to the aggravated intentional exposure to risk by driving charge, a very loud message must be sent to those who may consider engaging in that sort of conduct. Likeminded potential future offenders must understand that there will be sizeable penalties for those who expose police members to that heightened risk by driving a car. So too for those who drive in such a way as to expose other innocent road users to risk of serious injury. General deterrence is an important sentencing purpose here, though as I have said, I do not lose sight of your youth.
70 I must pay regard to current sentencing practices. That is not a single controlling factor of course. It is just one of the many matters that I must have regard to.
71 I have looked at the relevant Sentencing Advisory Council Snapshot (No.237 of 2020), for the offence of aggravated burglary. The most common prison sentence in the period covered by that snapshot, where prison was selected for the crime of aggravated burglary, was between three years to less than four years’ imprisonment. Statistical material always has limitations. I am not passing sentence as a statistician. I have looked at the Judicial College of Victoria new sentencing manual dealing with an overview of aggravated burglary sentences. The aggravated intentional exposure offence is relatively new and does not even have a Snapshot or any data that I can find. There are in fact very few examples of other people sentenced for this crime. There are some related cases that have been dealt with by Judges in this court but they just give a sense of what has happened in those other cases and most that I can find relate to the lesser offence of aggravated reckless exposure, which has a significantly lesser penalty. Those sentences are not in any way to be treated as precedents. There are also many differences in offence detail and background. I have looked at the cases of Nelson [2019] VCC 392; Bagdas [2019] VCC 1951 and Bullard [2020] VCC 243. I have also looked at the case of Jaeger [2019] VCC 526 in relation to the aggravated intentional exposure to risk provision. That was a sentence in relation to that offence where a five year prison term was imposed by Judge Hannan of this court, but for conduct that was far worse than yours and which resulted in physical injury to two police members who had their car deliberately rammed by a much older offender. I have looked also at other sentences imposed in other instances of conduct endangering serious injury.
72 Having done all that though, at the end of the day what I have got to do is pass an appropriate sentence in relation to your crimes. Crimes committed by you. That outcome is not dictated by statistical measures, by what is most common or by sentencing outcomes in other cases.
Totality
73 I have taken into account the principle of totality of sentence.
74 I have engaged in a last look at the sentences imposed by the court, and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you and to ensure that the overall effect is commensurate with your overall criminality. Your counsel initially suggested that there should be total concurrency in relation to all of the offences occurring on 22 July as they were, as she put it, a single episode of offending. She correctly retreated from that submission. It would be unthinkable for there to be total concurrency. Here I have a number of different crimes with differing elements and differing victims. Yes there is a tight time frame and I have regard to that especially in relation to the conduct on the 22 July where the desire to escape the scene no doubt motivated you to commit two aggravated burglaries and related thefts and then the two aggravated intentional exposure to risk offences. But the need for some level of cumulation is very plain. I cannot just treat two aggravated burglaries as one or treat two separate police members as though they were a single victim. These were separate crimes with separates elements, separate victims and separate impacts. The conduct endangering serious injury, where you crossed over into the wrong lane, was over an hour later. The first two theft offences on the indictment weeks before. I also have the presumption of cumulation in relation to the category 2 offence sentences by virtue of s.163D.
75 Even if I thought a community corrections order was an appropriate outcome, and of course I do not, it would not even be open to the court to impose a community corrections order or combine prison with a community corrections order in relation to the category 2 offences. Section 5(2)H Sentencing Act provides that I must confine you though I believe that the provision could in an appropriate case be satisfied by detention in a youth justice facility, as an option such as that is found in division 2, part 3 of the Act.
76 Quite aside though from the impediment thrown up by s.5(2)H, your offending and past history compel me to confine you. There is no suggestion that it is open for me in this case to consider a term of detention at a youth justice facility. You have been there in the past, you have then gone on to prison and have continued to offend beyond that. Your counsel concedes that I must imprison you and for a period where I will be required to fix a non-parole period. She is quite right.
77 Prison is always a disposition of last resort. Here you have simply left the court with no choice.
78 I will be required to fix a non-parole period and so I will arm the Adult Parole Board with the capacity to consider releasing you at some point before the lapse of your head sentence. I can make no assumptions as to that parole release happening. Indeed, I must not speculate on that score. I must work on the understanding that you will serve every day of the head sentence which I will soon pronounce. However, it is very plain to me that you will need some sizeable support upon your release whenever that is and I will provide my reasons and the various reports to assist the Adult Parole Board in their difficult task. Though your mother no doubt loves you and supports you, and they are positives, there are limits to what she can do as her letter makes plain. Structure and programs and treatment will be important for you and she just cannot provide them. I will take up then your counsel’s submissions and will provide for the possibility of a lengthy period on parole.
79 So just remain seated then and I will pass sentence upon you
Sentence
Indictment
80 On Charge 1, the theft of a car, you are convicted and sentenced to eight months’ imprisonment.
81 On Charge 2, theft of a car, you are convicted and sentenced to eight months’ imprisonment.
82 On Charge 3, aggravated burglary, you are convicted and sentenced to
21 months’ imprisonment.
83 On Charge 4, that is the theft of the handbag pertaining to that aggravated burglary, I convict and sentence you to one months’ imprisonment.
84 On Charge 5, aggravated burglary, I convict and sentence you to two years’ imprisonment. I will make that the base sentence.
85 On Charge 6, theft of a car, you are convicted and sentenced to 10 months’ imprisonment.
86 On Charge 7, the first of the charges of aggravated intentional exposure of a police officer to risk by driving, you are convicted and sentenced to 15 months’ imprisonment.
87 On Charge 8, aggravated intentional exposure of a police officer to risk by driving, again you are convicted and sentenced to 15 months’ imprisonment.
88 On Charge 9, conduct endangering serious injury, I convict and sentence you to 18 months’ imprisonment.
89 On Charge 10 and 11, possession of drugs of dependence, I believe I can and should in fact pass an aggregate sentence. You are convicted on each charge and fined an aggregate sum of $750 on those two charges.
Related summary offences
90 On the summary charge of driving whilst disqualified, you are convicted and sentenced to one months’ imprisonment.
Cumulation
91 The base sentence is therefore the two years imposed on Charge 5. I now need to set out the extent of the cumulation. You will not follow, necessarily, what all this means but I will explain it to you at the end.
92 I direct then that;
93 Two months of the sentences imposed on each of Charges 1, 2 and 6; and four months of the sentences imposed on each of Charges 3, 7, 8 and 9 is to be served cumulatively upon the base sentence and upon each other. The sentence on the theft of handbag will be served concurrently. So too the sentence imposed on the drive whilst disqualified. I am then, to this extent, otherwise directing concurrency under s.16(3)D in relation to the two category 2 offences.
Total Effective Sentence
94 These orders then produce a total effective sentence of 46 months or three years and 10 months’ imprisonment.
NPP
95 I fix a period of two years during which you will not be eligible for release on parole.
Section 18
96 You have been in custody already for the period of 281 days and that period is declared as having already been served under this sentence.
Section 6AAA
97 I have told you that I have taken into account your guilty plea. Had you pleaded not guilty and been found guilty by a jury, I would have convicted and sentenced you to six years’ imprisonment and fixed a non‑parole period of four years. That s.6AAA declaration is to be noted in the records of the court.
Licence order
98 On each charge of car theft I must make an order against your licence. On each of those charges, so Charge 1, 2 and 6, all licences and permits to drive are cancelled and you are disqualified from driving in this State for a period of 6 months commencing from today.
99 The conduct endangering serious injury charge does not have a mandatory licence order but I believe it is necessary and appropriate to make a licence order in relation to that offence given the serious nature of that conduct. I make that order under s.89A of the Sentencing Act.
100 As to the two charges of aggravated intentional exposure of the police to risk by driving, there is in fact a requirement to make a licence order. There is a 24 month minimum period.
101 You are going to prison for a substantial period. Whenever you are released, and I do not know when you will be, you will need to try establish yourself back in the community. You will hopefully at some stage be able to find something resembling employment. You will hopefully want at some stage to get a licence. To actually be authorised to drive a car. A licence to drive may be of some use in your ongoing rehabilitation as it can be a useful thing to have in the job market. There is something of a tension between your rehabilitation on the one hand and both punishing you and protecting the community from you on the other. You are receiving sizeable punishment by virtue of the prison sentences that I have pronounced.
102 However, given the nature of the driving in this case, the major licence orders must have a tangible effect upon you, and the only way it can is if it is fixed by way of some future defined event. Otherwise, you would potentially serve the whole disqualification period whilst in prison and it would have no actual or practical impact upon you at all. So I model the form of my order on that form discussed in cases such as Tran (2002) 4 VR 457 and Caldwell (2004) 8 VR 1.
103 On those three charges, so Charges 7, 8 and 9, I cancel all licences to drive and disqualify you from obtaining another permit or from driving in this State. Those orders will commence today. You are disqualified from obtaining another licence or any permit or from driving in this State, effective from today and ending 12 months after you are first released from custody whether on parole or upon the expiry of the sentence. What that means is that you will be disqualified from driving upon your release from prison and that will be for a 12 month period upon your release. Thereafter of course, to be able to drive, you would need to go off and actually obtain a licence to drive a vehicle.
104 Let me see if there is anything else I need to deal with. Are there any other orders that I need to make, Mr Bourbon or Ms Randazzo?
105 MR BOURBON: No, Your Honour, there aren’t.
106 MS RANDAZZO: No. No, Your Honour, I agree there aren’t.
107 HIS HONOUR: Now I have gone through the various individual sentences and the orders for cumulation and the total effective sentence and the non-parole period, are you all across the detail of that?
108 MS RANDAZZO: Sorry, go ahead.
109 MR BOURBON: Sorry, could I just have one moment to confirm my calculations.
110 HIS HONOUR: Yes, sure.
111 MS RANDAZZO: Your Honour, whilst that’s done may I just for – sorry, I’m just getting some feedback. May I just go through each of the charges and just indicate that I’ve recorded accurately the - - -
112 HIS HONOUR: I will go down them again. If you had been here I probably would have given you a - - -
113 MS RANDAZZO: Just in relation to the cumulation.
114
HIS HONOUR: Well, I will just go through the individual sentences again. Charge 1, eight months; Charge 2, eight months; Charge 3, 21 months; Charge 4, one month; Charge 5, two years, which is the base; Charge 6,
10 months; Charge 7, 15 months; Charge 8, 15 months; Charge 9, 18 months and 10 and 11 is an aggregate fine of $750. The summary offence, drive whilst disqualified, one months’ imprisonment. So the base is the two years imposed on Charge 5.
115
And then I direct that two months of the sentences imposed on each of Charges 1, 2 and 6, so that adds six months of cumulation and four months of the sentences imposed on each of Charges 3, 7, 8 and 9, that adds
16 months. So that is the extent of the cumulation. They are to be cumulative upon the base sentence and upon each other.
116 There is concurrency in relation to the theft of the handbag and drive whilst disqualified sentence. So that extent of cumulation discloses the extent to which I have otherwise ordered concurrency under s.16(3)D of the Sentencing Act for the category 2 offences.
117 MS RANDAZZO: Thank you. Sorry, Your Honour.
118 HIS HONOUR: By my calculation it is a total effective sentence of 46 months or three years and 10 months, with a non-parole period of two years, with a declaration of the 281 days.
119 MS RANDAZZO: Your Honour, I’ve done the calculation, I certainly agree with that calculation.
120 HIS HONOUR: So at least the maths is correct. All right, so there are no other matters then that I need to deal with?
121 MR BOURBON: No, there aren’t, Your Honour, and I agree with that calculation as well.
122
HIS HONOUR: All right, well thank you very much for your attendance. Now, Ms Randazzo, again it is a difficult time in terms conferring with clients, I am sure of that. What I might do, if you want me to, is I will shortly get
Mr Bourbon to remove himself from the WebEx, I will then step out and then you can have the opportunity of speaking to your client, do you want to do that or not?
123 MS RANDAZZO: Yes please, Your Honour, I was going to ask for that to occur.
124
HIS HONOUR: Well that is what I will do. So, Mr Nixon, I have explained as best I can the orders that I have imposed, what it all amounts to. It is, as you have heard, it is a sentence of three years and 10 months, but with a
non-parole period of 24 months, two years, and you have already done 281 days. Ms Randazzo will have the chance to go through and answer any questions that you want to ask about that and for that matter to explain anything that needs to be explained. So that will occur in a moment, do you understand?
125 OFFENDER: Yeah.
126 HIS HONOUR: All right, so you stay put there and what I will do is I will – I am going to adjourn the court in a moment. I will have Mr Bourbon disconnect himself from the link, if he would.
127 MR BOURBON: I’ll do that now, Your Honour, as the court pleases.
128 HIS HONOUR: And I will do likewise by adjourning.
129 MS RANDAZZO: If the court pleases.
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