Director of Public Prosecutions v Ogden-Jones
[2021] VCC 167
•10 February 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-20-01293
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZEPHYR OGDEN-JONES |
---
JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February 2021 | |
DATE OF SENTENCE: | 10 February 2021 | |
CASE MAY BE CITED AS: | DPP v Ogden-Jones | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 167 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence — Plea of guilty — Aggravated burglary — Theft — Aggravated offence of recklessly exposing an emergency worker to risk by driving — Aggravated offence of intentionally exposing an emergency worker to risk by driving — Rolled-up charges — Deterrence — Protection of the community — Denunciation — Young offender — Impaired mental functioning — Rehabilitation
Legislation cited: Crimes Act 1958; Sentencing Act 1991
Cases cited: Azzopardi v The Queen (2011) 35 VR 43; The Queen v Verdins (2007) 16 VR 269
Sentence: Total effective term of imprisonment of four years and nine months with a non-parole period of two years and three months — license cancelled and disqualified from obtaining a licence for three years from 1 January 2023 — s.6AAA declaration — six years and three months and fixed non-parole period of three years and three months
---
APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr S. Devlin | OPP |
| For the Accused | Ms E. Millar | VLA |
HIS HONOUR:
1 Zephyr Ogden-Jones, you have pleaded guilty to the following charges.
(i) Three counts of aggravated burglary contrary to s.77 of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment;
(ii) Four counts of theft contrary to s.74 of the Crimes Act 1958. The maximum penalty for that offence is 10 years imprisonment;
(iii) Two counts of the aggravated offence of recklessly exposing an emergency worker to risk by driving contrary to s.317AF(1)(a) of the Crimes Act 1958. The maximum penalty for that offence is 10 years imprisonment; and
(iv) One count of the aggravated offence of intentionally exposing an emergency worker to risk by driving contrary to s.307AD(1)(a) of the Crimes Act 1958. The maximum penalty for that offence is 20 years imprisonment.
2 Charges 5 and 10 on the Indictment are each rolled up charges, a procedure adopted with your consent, by which multiple acts that constitute the charge are contained in a single charge. This procedure enables the court to have regard to your overall offending but constrained by the maximum penalty applicable to an individual charge.
3 You pleaded guilty at committal mention and I have taken your early plea into account in your favour in mitigation of sentence. It is a high value plea, relieving witnesses the trauma of complex criminal proceedings and it has further spared the community the burden of those proceedings. I also accept that your plea is evidence of some remorse for your offending.
4 You have admitted a criminal history in the Children's Court of Victoria for a range of serious offences dating to 2018 when you were just 15 years old. You have, by my reckoning, eight convictions for the offence of aggravated burglary from two separate court appearances in 2018 and 2019, for which you were ordered to be detained in a Youth Justice Centre. You also have multiple convictions for offences of violence, serious driving offences committed whilst pursued by police, drug offences, and weapons offences.
5 Youth Justice dispositions have failed to rehabilitate you or deter you from reoffending and the offences before this court were committed when you were on youth parole and had been in the community for less than three weeks.
6 Your serious criminal history, albeit, for offences committed when you were a child, is significant for sentencing purposes in this case and, in my opinion, despite your age, specific deterrence and the protection of the community are prominent sentencing considerations in your case.
7 A summary of prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows -
8 On 22 April 2020 at 1.30 am, you entered residential premises in the Lake Wendouree area in Ballarat via an unlocked rear door. Asleep in the premises was the occupant Brendan Toohey. You located his car keys and went to a rear shed where his Subaru vehicle was parked. Mr Toohey was awoken by you and went to investigate. You drove his vehicle through a fence to make your escape after he attempted to prevent you from doing so. This conduct constitutes Charges 1 and 2 on the Indictment.
9 On 27 April 2020 at 12.45 am, you then entered residential premises in Trentham through an unlocked rear door. Asleep in the premises was the occupant Sienna Mouncey. You located her car keys and after she disturbed you, you ran from the premises and stole her Subaru from the garage and drove it away. This conduct constitutes Charges 3 and 4 on the Indictment.
10 Shortly afterwards, you met up with Ms Bella Howerton[1] who was then driving a stolen Ford Ranger. You drove in convoy with her towards Ballarat and the vehicles were then pursued by four police vehicles. You drove the stolen vehicle along the Western Freeway at speeds of up 185 kilometres an hour. In Ballarat, whilst the Ford Ranger was pursued by police in two vehicles, you drove the Subaru into a position behind the police vehicles and attempted to ram those vehicles and force them from the road in separate dangerous manoeuvres. This constitutes Charge 5 on the Indictment.
[1] A pseudonym.
11 At approximately 2 am that morning, an investigating police officer was standing outside his vehicle in Cameron Street, Ballarat. You drove the Subaru at high speed along Cameron Street towards the police officer and his vehicle. He took evasive action before you collided with his vehicle and then drove away. This conduct constitutes Charge 6 on the indictment. You were not apprehended by the police that day.
12 In the early hours of the morning, on 28 April 2020, that is, the following day, you again entered residential premises in Lake Gardens, a suburb in Ballarat. Asleep in the house were its two elderly occupants John and Catherine Walter. You entered the garage of the property and located the Walter's two vehicles, which each had the keys in the ignition. You and a co-offender drove both vehicles away. This conduct constitutes Charges 7, 8 and 9 on the Indictment. You were driving Mrs Walter's Toyota.
13 At approximately 12.30 am on 29 April 2020, you were observed by police in her vehicle and they attempted to intercept you. You drove away at high speed, causing one police officer to take evasive action before you collided with the police vehicle containing another officer. You then ran off before being arrested by police in a taxi with your co-offender, attempting to make your escape. This conduct constitutes Charge 10 on the Indictment.
14 In a record of interview conducted by investigating police, you made admissions to the offending before this court. You were remanded in custody on 29 April 2020, where you remain.
15 It is plain from this summary that your offending is of the utmost seriousness. Whilst on youth justice parole, you committed a series of aggravated burglaries with no regard whatsoever for the security or wellbeing of the occupants of the residential premises or their fundamental entitlement to peacefully occupy their homes. These crimes were planned and you chose homes that were poorly secured. Vehicles were stolen, again, with no regard whatsoever for the property of others and you then engaged in criminal behaviour directed at police officers who were performing their lawful duty of protecting the community from you.
16 This offending strikes at the fundamental foundations of our society and, in particular, citizens' entitlement to safely reside in their homes. Furthermore, your criminal actions directed at the police exhibited your complete disregard for their safety as they performed their duties.
17 I have no doubt that this offending must be unequivocally denounced by the court and our community must be protected from crimes of this nature and from young offenders like you.
18 I have received in evidence victim impact statements of Mr and Mrs Walter, the two elderly, vulnerable victims of your offending at Lake Gardens and I fully accept that your crimes have seriously harmed their sense of security, wellbeing and independence. Furthermore, I have no doubt that your crimes also had a traumatic effect on your other victims and the police officers exposed to the risk of injury by your dangerous driving.
19 Before turning to your personal circumstances, it is necessary to refer to the sentencing principles engaged in this case and the relevant provisions of the Sentencing Act 1991.
20 You were born in Daylesford on 5 March 2002 and are now aged 18. You will soon be 19. You were 18 at the time of your offending and accordingly, are a young offender for the purposes of the Sentencing Act and, more generally, your youth is significant for sentencing purposes in this case.
21 In Azzopardi v The Queen ( 2011) 35 VR 43, the Court of Appeal said, 'Where the degree of criminality in the offending requires the sentencing objectives of deterrence, punishment and the protection of the community to be more prominent in sentencing, the weight to be attached to youth and the role of rehabilitation is correspondingly reduced.' This is such a case.
22 By operation of s.5(2H) of the Sentencing Act, Charges 5, 6 and 10 on the Indictment are Category 2 offences and I am required to impose a custodial sentence in respect of them, unless you satisfy the court on the balance of probabilities that one or more of the exceptions provided for in the provision are established. For these purposes, a custodial sentence does not include a term of imprisonment in combination with a Community Correction Order. Furthermore, even if I am satisfied that one or more of the relevant exceptions is engaged in your case, it does not follow that a sentence, other than a custodial sentence, ought to be imposed.
23 Your counsel submitted that in the circumstances of this case, by reason of a body of psychological and neuropsychological evidence that she relied upon, I should be satisfied on the balance of probabilities that:
(i) at the time of the commission of the offence you had impaired mental functioning that is causally linked to the commission of the offence and substantially materially reduced your culpability, or
(ii) you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
24 She submitted that the exceptions provided for in s.5(2H) of the Act were engaged and the appropriate proportionate sentence in this case was a sentence of imprisonment in combination with a Community Correction Order.
25 In support of this submission, which was opposed by the prosecution, Ms Millar tendered a psychological report of Ms Alison Maynard, setting out your background and psychological profile. I accept, based on the contents of that report, that you suffer from attention deficit hyperactivity disorder (ADHD) and this condition in turn is compounded by a hearing deficit that is caused by congenital microtia of the left ear, resulting in approximately 30 per cent hearing loss.
26 These conditions adversely affected your childhood and personal development. You struggled at school and exhibited disruptive behaviours from a young age and you were home schooled for a period of two years. You were not able to complete year 9 and since leaving school, you have had limited work as a labourer. You also suffer for polysubstance abuse disorder and have used a range of illicit substances since the age of 13. More recently, you have used methylamphetamine (ice) and were affected by that substance when all of this offending occurred.
27 Ms Millar also tendered in evidence a neuropsychological report prepared in 2018 by Associate Professor Warrick Brewer detailing his neuropsychological assessment of you. His report was requested by your youth justice case manager and it details the serious and entrenched criminogenic characteristics exhibited by you when you just 15 years of age. Associate Professor Brewer also refers to the contents of a psychiatric report prepared by Dr Danny Sullivan in 2017 detailing your then psychiatric profile.
28 It is plain from these reports that you suffer from ADHD and polysubstance abuse disorder. Your social development has been seriously impaired by these conditions and the risk of you reoffending is, in my opinion, very high. The youth justice dispositions that you have been the subject of to date, have failed and, furthermore, you have offended whilst detailed in a Youth Justice Centre.
29 However, I accept that your ADHD is causally linked to Charges 5, 6 and 10 on the Indictment, in that your impulsiveness and impaired reasoning skills in part caused you to drive in the manner alleged. I also accept that your ADHD and impaired cognition will result in you being subject to a substantially and materially greater personal burden in adult prison. It is therefore open to me to not imprison you for those offences and to impose a combination sentence, as was sought by your counsel.
30
I have also received in evidence a reference prepared by your mother
Ms Mel Ogden detailing the support she has for you. This is also supported by a reference from your grandparents and I accept that your family is most concerned for your welfare and your future wellbeing. This support will aid your future rehabilitation.
31 I also accept, quite apart from the provisions of the Sentencing Act that I have referred to, that the principles set out by the Court of Appeal in The Queen v Verdins (2007) 16 VR 269 are engaged in your case. Your mental illness moderates your moral culpability for your offending and the application of the principles of specific and general deterrence are to be moderated in your case. As I have already said, your mental illness will also increase the hardship of imprisonment upon you.
32 I have carefully considered the thorough written and oral submissions made by your counsel on your behalf and the evidence that she relied on, but I have concluded that the only appropriate proportionate penalty available to me in this case is one of imprisonment with a non-parole period.
33 In arriving at that conclusion and in the formulation of the appropriate proportionate sentence in your case, I have also had regard to the following additional factors:
(i) You have been in adult prison, apart from a period of approximately three months, since 29 April 2020 and prior to this, in Youth Justice detention for approximately three years with some brief intervals. Therefore, there is a risk that you will become institutionalised and this will further impair the future prospects of your rehabilitation.
(ii) You have been imprisoned during the COVID-19 pandemic and this has restricted your access to programs and training. You have also been subject to lengthy periods of quarantine whilst moved between prisons and Youth Justice and you have not had personal family visits.
(iii)
The prosecution also referred me to the sentences imposed on your
co-offenders, but it is clear from their respective overall offending and their antecedents, that parity in sentencing is not a relevant factor in your case and, indeed, this was not pressed by your counsel.
34 In conclusion, I wish to make it clear that the sentences I will impose and the orders for partial cumulation and concurrency have been moderated by me by reason of your youth and mental illness. But for these significant factors, I would have imposed lengthier terms of imprisonment for this serious offending.
35 In the result, the sentence of the court is as follows -
36 On Charge 1 you are convicted and sentenced to be imprisoned for two years.
37 On Charge 2 you are convicted and sentenced to be imprisoned for nine months.
38 On Charge 3 you are convicted and sentenced to be imprisoned for two years.
39 On Charge 4 you are convicted and sentenced to be imprisoned for nine months.
40 On Charge 5 you are convicted and sentenced to be imprisoned for 18 months.
41 On Charge 6 you are convicted and sentenced to be imprisoned for 12 months.
42 On Charge 7 you are convicted and sentenced to be imprisoned for two years.
43 On Charge 8 you are convicted and sentenced to be imprisoned for six months.
44 On Charge 9 you are convicted and sentenced to be imprisoned for nine months.
45 On Charge 10 you are convicted and sentenced to be imprisoned for 15 months.
46 Charge 1 is the base sentence. I direct that three months of the sentence on Charge 2, six months of the sentence on Charge 3, three months of the sentence on Charge 4, six months of the sentence on Charge 5, three months of the sentence on Charge 6, six months of the sentence on Charge 7, three months of the sentence on Charge 9, and three months of the sentence on Charge 10 be served cumulatively on each other and cumulatively on the base sentence.
47 This makes for a total effective term of imprisonment of four years and nine months.
48 I direct that you serve two years and three months before becoming eligible for release on parole.
49 I declare that you have served 81 days by way of pre-sentence detention, not including today.
50 But for your plea of guilty, I would have imposed a total affective term of imprisonment of six years and three months and fixed a non-parole period of three years and three months.
51 All licences held by you are cancelled and you are disqualified from obtaining a licence in the State of Victoria for a period of three years from 1 January 2023.
52 I declare that the offences committed by you were committed under the influence of a drug and that will be entered in the record of the court.
HIS HONOUR: Thank you. Yes, those orders will be prepared and distributed. We'll adjourn now until half past 10, thank you.
- - -
3
0