Director of Public Prosecutions v O'Connor

[2024] VCC 938

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 24-00231

DIRECTOR OF PUBLIC PROSECUTIONS

v

TORY O'CONNOR

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2024
DATE OF SENTENCE:	21 June 2024
CASE MAY BE CITED AS:	DPP v O'Connor
MEDIUM NEUTRAL CITATION:	[2024] VCC 938

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - Sentence

Catchwords:  Theft of a motor vehicle – Conduct endangering persons with serious injury – Intentionally damaging property – Intentionally exposing an emergency worker to risk by driving – Plea of guilty – Young Aboriginal offender – Intellectual disability – Application of Bugmy principles – Application of Muldrock principles

Legislation Cited:     Sentencing Act 1991

Cases Cited:Muldrock v The Queen [2011] 244 CLR 120; Bugmy v The Queen (2013) 249 CLR 571; DPP v Terrick [2009] VSCA 220; R v Verdins (2007) 16 VR 269.

Sentence:Total effective sentence of 24 months’ detention in a Youth Justice Centre

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Baxter	Office of Public Prosecutions
For the Accused	Mr T. Acutt	Greg Thomas Barrister & Solicitor

HIS HONOUR: 

1Tory O’Connor, you are an 18-year-old, soon to be a 19-year-old, Gunai/Kurnai man who has pleaded guilty before me to charges of:

·     Theft of a motor vehicle, which carries a maximum penalty of 10 years' imprisonment.

·     Conduct Endangering Persons with Serious Injury, 5 years' maximum.

·     Intentionally damaging property, which carries a 10 year maximum.

·     Two aggravated offences of intentionally exposing an emergency worker to risk by driving, each of which carry a maximum of 20 years' imprisonment.

2These latter two charges are also Category 2 offences.

3You have also pleaded guilty to relevant summary offences of:

·     Failing to stop and render assistance after causing property damage, which has a maximum of 14 days.

·     Driving whilst disqualified, 3 months maximum.

4You have numerous relevant prior convictions and findings of guilt despite your young age, including numerous instances of similar offending.

5Remarkably, you were bailed less than a week prior to the offending for which I am now sentencing you, in relation to charges of theft of a motor vehicle, reckless conduct endangering life, driving at a speed dangerous and failing to stop on police direction.

6It was a condition of your bail not to drive a motor vehicle.

7Your offending before me is a frightening and disturbing example of reckless and dangerous driving, whilst being pursued by police, by a teenager, affected by substances, who also experiences significant cognitive functioning and processing difficulties which limits your consequential thinking.  All of which is a recipe for disaster.

8I accept that the untimely passing of your mother was a tragic and traumatic event in your life that precipitated your increased drug use and reckless conduct in the months leading up to the offending.

Circumstances of Offending

9The full details of your offending were before me at a Sentencing Indication Hearing and again at the Plea in the form of Exhibit A, which forms part of these Reasons for Sentence.  I will not recite the facts in detail.

10In all of its circumstances it is one of the most serious examples of reckless conduct endangering serious injury I have seen.

11You had three young passengers in the stolen vehicle you were driving. The Police Air Wing was making observations of your vehicle. Police deployed a tyre deflation device and a marked van pursued you with lights and sirens activated.  You drove over the device despite a police officer running toward your car and directing you to stop.

12Another officer tried to open your door, which was then locked.  Another officer tried to break the passenger side window with a baton but you drove off at a fast rate of speed, deflating all four tyres in the process.

13Aspects of your driving that followed included:

·     Driving on the rims of the wheels, on a footpath and reversing around a blind corner on Como Parade West;

·     Driving the wrong way around a roundabout onto Parkers Road, and multiple drivers braking to avoid collision;

·     Driving on Nepean Highway at 130 kilometres per hour, swerving between lanes whilst driving on rims;

·     Turning right onto Mitchell Street in front of oncoming traffic and narrowly avoiding collision;

·     Driving on the wrong side of the road on Balcombe Road and over solid lines, and driving south on Como Parade West at speeds of up to 120 kilometres per hour in 40 and 50 kilometres per hour zones;

·     Driving south on Beach Road, driving around a bus and through a red light at a pedestrian crossing. You reached speeds of up to 120 kilometres an hour on Beach Road which is a 60 kilometre zone;

·     Crossing onto the wrong side of the road and over solid lines on Governor Road, up to speeds of 120 kilometres an hour;  

·     Driving on the Mornington Peninsula Freeway up to 180 kilometres an hour;

·     Driving South on the Eastlink Freeway at speeds of 90 kilometres an hour;

·     You drove on the wrong side of the road and through a Cyclone fence causing $11,000 worth of damage.

·     You then drove through the Pines and Flora Reserve which is a large reserve containing walking and cycling tracks and obviously closed to motorists;

·     You were driving on a narrow gravel walking and cycling track at that Reserve at speeds of 70 kilometres per hour, narrowly avoiding two pedestrians walking on the track;

·     At one stage narrowly avoiding a dog walker who had to take evasive action to avoid being hit;

·     A police car with flashing lights was driving slowly through the reserve trying to locate you, you drove along a track toward the police vehicle. A member of the public jumped out of the way.

·     On sighting the police vehicle, you drove towards it at speed. You drove at speed towards the police vehicle despite it reversing. You collided directly with the front bumper of the police vehicle causing the vehicle to twist sideways so that the passenger side of the vehicle was facing your vehicle (effectively blocking your path).

·     You drove directly into the side of the police vehicle and hit the vehicle a second time to the passenger side.

·     You drove directly at Officer Reyment who avoided being hit by less than 1 metre.

·     You reversed and drove a third time at the police vehicle.

·     Moments before the impact of the collision, Officer Reyment took evasive action by climbing a retaining wall to get out of the way of your vehicle. You narrowly missed his right leg by 2 seconds.

·     On collision, your vehicle was only metres away from Officer Larkins. The impact of the collision forced the police vehicle closer to the fence which created a risk to Officer Larkins of being pinned against the adjoining fence and the police vehicle.

·     This did not deter you; you were eventually able to manoeuvrer your vehicle past the police vehicle and continued to drive it along the track.

·     The police vehicle sustained considerable damage, over $30,000 worth.

·     Not long after this incident you were observed mounting a kerb and driving along a footpath for 100-200 metres before driving directly into a power pole.

14It is extremely fortunate that no bystander, police officer, or passenger in your car was killed or seriously injured during this episode. It is the experience of this Court that even a fraction of the dangerous conduct you engaged in behind the wheel can often result in death or serious injury to one or more persons. I make this observation in connection with an assessment of the objective gravity of your overall offending.

15Notwithstanding that observation, I sentence you on the basis that your driving conduct placed numerous persons over an extended period at substantial risk of serious injury.

16Your conduct underpinning Charges 4 and 5 needs no further illustration of its objective gravity than to note Parliament has set a maximum penalty for the offence of 20 years.

17It is also a Category 2 offence which means I must impose a period of imprisonment other than one in combination with a CCO unless exceptions are made out.

Victim Impact Statements

18I received victim impact statements, Exhibit B and Exhibit C from Officers Larkins and Reyment.  Those statements were read in open court. You have acknowledged in the CCO assessment report that you have some understanding of the impact on your victims. Nowhere near enough, and this, probably, is reflective of your cognitive profile.  But objectively I have to take into account these impacts.  The impacts are serious and far reaching and they will be longstanding, and I take them into account.

Personal Circumstances

19A number of reports and documents have been relied upon which provide detail as to your experiences from early childhood and your present circumstances.  These include:

·Psychological Report from Austin Campbell, dated 13 May 2024 (Exhibit 2).

·Psychological Report of Dr Ives dated 29 November 2018 (Exhibit 3) which provided excellent longitudinal view and historic view.

·A letter regarding NDIS supports from Arcadia Specialist Support Coordination, there are two such letters (Exhibits 7 and L).

·Berry Street Cognitive Assessment Report of 22 May 2018 (Exhibit 4).

·I also had the benefit of the more recent assessments: the Youth Justice Suitability Report (Exhibit E), Supervised Bail Report (Exhibit F); and (Exhibit J), the Disability Overview Report; CCO Assessment report (Exhibit K); and the MHARS Report.

20Your Counsel Mr Acutt’s Outline of Submissions, Exhibit 1, also covers detail personal to you and I rely upon and accept that detail. Those submissions also adopt the Sentencing Indication Submissions of Mr McCulloch and I also rely upon those and accept the details contained therein.

21As I have stated, you are a Gunai/Kurnai man with family links to the former Lake Tyers Mission.  I am not going to go into a lot of detail about your early childhood circumstances save to say that there are evidentiary grounds for my acceptance that:

·You were subject to opiate and alcohol exposure in utero;

·Both parents, whilst loving parents, had their own challenges in your early years, which impacted upon the degree of nurture, support and engagement with appropriate services and medications you were provided with in infancy, childhood and your teenage years.

·You were exposed, to some degree, to family violence and other negative influences during childhood;

22You were first diagnosed with an intellectual disability at age 12 and you had a previous diagnosis of ADHD from the age of six.  Although prescribed medication for ADHD it was only administered to you sporadically due to the dysfunctional family environment.

23Your intellectual profile significantly impaired your education experience, of course.

24You commenced cannabis use at 15.

25As I have noted, tragically your mother passed in January 2022 when you were 17.  You commenced methamphetamine use around that time. The use of methamphetamine in conjunction with your emotional dysregulation, ADHD and level of functioning has created a diabolical mix.

26You have worked in scaffolding in the past. You have expressed a desire to do so again in the future and also to work with your father who may be able to help provide some opportunity for you in that regard.

Factors in Mitigation

Reports

27I have mentioned the reports, the psychologist report of Austin Campbell and also Dr Ives' report.  I am not going to refer to each of them in detail.  I found them very useful, particularly Mr Campbell's report from paragraphs 23 onwards.  He does find at [26] that:

‘… with appropriate intervention and through engagement with support services, Mr O'Connor's prospects of rehabilitation remain positive'.

28I do not disagree with that.  It is a matter of finding the right mix of supports that meet the risk and your particular needs, which are complex.

29I am not going to refer in detail to the Justice Plan and the statement of intellectual disability. It is clear that you would benefit from a Justice Plan and adherence to a Justice Plan upon release.  Disability Support has also provided a very useful report and document and the Disability Support Coordinator has been present during this morning's hearing.

30The Youth Justice Supervised Bail Report has also been a useful document in assessing your particular needs and risk profile.

31The YJC Assessment and Youth Corrections Order Assessment, all of these reports have been useful in informing my assessment and synthesis of the competing sentencing factors in your case.

Supports

32You have effectively only entered the justice system in 2022, and there has been positive engagement over that time. You have engaged with Disability Justice. The NDIS support plan that is in place for you is significant and in particular what is set out in the documents from Arcadia Services is encouraging. These supports auger well for your reintegration into the community and rehabilitation in the future.

33You have established relationships with a support coordinator, occupational therapist who has attended court today, and behavioural support worker.

34You have good family support. Your father and other relatives have been at every hearing before me, your father has been at every single hearing. Your Nan and cousins and sisters are present today.

35You can live with your Nan and sisters in Carrum Downs upon release.  And as I have said, you have available to you Arcadia Services support.  Your father, Tory O’Connor Senior has been unwavering in his support for you.

36You have an interest in working and earning your own way and you have the capacity to do that, and work in scaffolding, and I am told that you intend to work closely with the established supports and what is available to you upon release to do so.

Youth

37Your counsel, Mr Acutt, rightly placed emphasis on your youth.  You are 18, I think you turn 19 in a few weeks in July, and it is your first time in adult custody and it is a long period of time, and I have said throughout each hearing that it is certainly not ideal you being on remand in adult custody, and not a circumstance that I wanted to continue for any longer than was absolutely necessary to conclude this matter, which is today.  So your youth does remain a primary consideration of mine and the community's interest in rehabilitating a youthful offender, such as yourself.

Intellectual Disability

38The intellectual disability, of which there is strong evidence from various sources before me, is a significant factor in dealing with this matter.

39Your IQ has been assessed between 60 and 62, which is very low and as Mr Acutt rightly says, in relying on Dr Ives report, it is all pervasive and Mr Acutt relies on the quotation from Dr Ives at p. 20 of his report where he says:

‘Such a low level of intellectual ability will have pervasive and determinantal effects on his perception, memory, understanding and behaviour, and will, for instance, severely restrict his capacity to foresee the likely consequences of his actions, to learn from his experiences, to cope with any level of complexity beyond the concrete and the 'here and now', to have insight into his emotional conflicts and motives, to control his impulses…to resist being led and influenced by others, and to understand the nature of society….and in organising and self‑monitoring his behaviour.’

40Mr Acutt relies correctly on Muldrock principles and Muldrock does apply in your case with full effect.[1] And that factor in the absence of other circumstances, would militate strongly against you spending time in not only adult custody, but also Youth Detention, because it significantly does impact upon the concept of moral culpability.

[1]       Muldrock v The Queen (“Muldrock”) [2011] 244 CLR 120.

41In your case it becomes relevant in another way too, and it is the troubling aspect of community protection given the high risk of driving behaviours such as you have been engaging in, in the matters before me, and the matter for which you were on bail for at the time of the commission of these offences.  So it has been a difficult balancing exercise.

Disadvantaged Background - Bugmy

42Mr Acutt also relies on the application of Bugmy principles, which is not controversial in this case.[2]  I accept that disadvantage and traumas, particularly in combination with your cognitive profile, is a significant matter in sentencing.  Mr Acutt refers to Terrick, and I will not reproduce the passage from Terrick that he refers to in his outline, but I accept it has application in this case.[3]

Prospects of Rehabilitation

[2]Bugmy v The Queen (“Bugmy”) (2013) 249 CLR 571.

[3]DPP v Terrick [2009] VSCA 220 at [46] – [47].

43In relation to your prospects of rehabilitation, I do find that you have prospects of rehabilitation particularly given your family supports and availability of services.  It is a question of managing your particular frailties and cognitive difficulties in a supported environment, and in a way that can help you engage with those services to remain on a positive pathway.  The supports are available.

44As I have foreshadowed, I consider that the best way of harnessing those supports is through the facility of youth parole.

Remorse and Insight into Offending

45You have expressed appropriate remorse and demonstrated some insight whilst in custody.  You have also commenced the rehabilitative work whilst in custody, and you have shown an openness and a willingness to engage with services.

Other Sentencing Considerations

46This is a case by virtue of Charges 4 and 5, where s5(2H) of the Sentencing Act1991 comes into play.  Those two charges are category 2 offences which means I must impose a period of imprisonment other than a period in combination with a community corrections order, unless one of the exceptions applies, and it has been submitted in this case that there is an exception.

47I indicated at the sentence indication hearing that I was satisfied that due to a combination of factors there are substantial and compelling circumstances that are exceptional and rare and that justify departing from the mandatory gaol sentence.

48These factors include the cognitive profile which I have referred to; very young age; the supports that are available; the precipitative factor of your mother’s passing; the availability of Bugmy mitigation; the application of Muldrock principles and there is some overlapping application with Verdins, in my assessment;[4] the circumstances of you spending 10 months in adult custody in the context of all of these features; and the availability of therapeutic supports and services.

[4]R v Verdins (2007) 16 VR 269.

49However, as I also previously noted you are at high risk of like offending and the gravity of that risk eventuating is significant.  Community protection is prominent in the sentencing exercise.

50I have considered carefully the option of a deferral of sentence on Youth Justice supervised bail in combination with other conditions, which might then lead to a combination sentence.

51I have given careful consideration to Mr Acutt’s persuasive and clinical argument as to why I should go down that path, despite Youth Justice’s concerns about managing risk.

52I have also weighed up the points Ms Baxter rightly raises in her careful submission, particularly given the MHARS report and the concerns raised there with capacity.

53I heard from Mr Shah from the body of the court as to the practical landscape in relation to Youth Justice.

54I do not want you to be in adult gaol for any further period.  It is unfortunate you have been on remand for so long in adult custody, a young Aboriginal man.  I have determined it is in your best interests for your safety and rehabilitation, and in turn in the community’s best interest in terms of community protection, to impose a sentence which sees you detained in a Youth Justice Centre.  Having of course received the report which is Exhibit E, as to your suitability and I have considered the legislative requirements of course, I do consider that for the reasons set out at pp. 4 and 5 of the report, that you are suitable for detention in a Youth Justice Centre facility.  There are reasonable prospects for your rehabilitation in that setting and you are particularly impressionable and vulnerable in the adult custodial setting.

55You have substantial pre-sentence detention that I will record in this matter, which would see on my understanding, parole planning in the Youth Justice setting commencing effectively immediately and there are a number of documents already in existence, such as the reports I have referred to, that can be provided  to assist that process, particularly the Arcadia Services letters, the Campbell report, the Ives report, and of course the Forensicare report and the YJ reports that are already in existence. Those documents will provide a good basis for immediate parole planning.  I expect that such planning would involve an assessment of the accommodation with Nan at Carrum Downs and an incorporation of the Arcadia Services that are available, and other programs and supports aimed at rehabilitating you, but also managing the risk and reintegrating you with family and work prospects.

56Having regard to all the competing factors that I must, including general deterrence, specific deterrence and denunciation, I have determined that a Youth Justice Centre period of detention is the appropriate sentence and I sentence you as follows.

Sentence

57In relation to Charge 1, theft of a motor car, you are sentenced to 4 months.

58In relation to reckless conduct placing in danger of serious injury, 15 months.

59In relation to damaging property, 3 months.

60Charge 4, aggravated offence of intentionally exposing an emergency worker, 12 months.

61Charge 5, the same offence, in relation to Mr Larkins, 12 months.

62The relevant summary offence of failing to stop, 6 days' imprisonment.

63And the driving whilst disqualified, 14 days.

64One month of the sentence imposed on Charge 3, four months of the sentence imposed on Charge 4, and four months of the sentence imposed on Charge 5 are to be served cumulatively upon the base sentence and other sentences; that base sentence being Charge 2.  All other sentences to be served concurrently. 

65That makes a total effective Youth Justice Centre detention order of 24 months.

66PSD is 291 days not including today.

67I make the declaration that – what is the declaration that needs to be made in relation to driving? 

68MS BAXTER:  As a result of being a serious motor vehicle offence pursuant to s89, the court must disqualify Mr O'Connor from obtaining a licence for a period of not less than 24 months.[5]

[5]Sentencing Act 1991

69HIS HONOUR:  Yes.

70MS BAXTER:  That is because the offence for which he has committed is defined in s89(2)(b) and that relates to a mandatory period of no less than 24 months.[6]

[6]Ibid.

71HIS HONOUR:  Yes.  Well licence cancelled and disqualified for 24 months, but did you also seek a declaration that it be whilst he was intoxicated?

72MS BAXTER:  Due to the fact that he was driving whilst he was intoxicated, yes.

73HIS HONOUR:  Yes.  So I make that notation.

74MS BAXTER:  Thank you, Your Honour.

75HIS HONOUR:  Now Mr O'Connor, Mr Acutt will explain to you in more detail what that involves, and also to your family members.  Effectively what it means is, it places it back onto you.  You will go to Youth Justice custody and people will work with you and if your behaviour is good and your engagement with planning is good, there is no reason that you can't be out on youth parole in the coming months.  And that will be a very supported process, but it really does rely heavily upon you being open and engaging thoroughly and making sure you follow directions and that your behaviour is good in that setting.

76We will adjourn the court.

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