Director of Public Prosecutions v Olierook
[2022] VCC 1847
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-00311
CR-21-00814
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Troy Olierook |
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JUDGE: | HER HONOUR JUDGE HASSAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2022 | |
DATE OF SENTENCE: | 21 October 2022 | |
CASE MAY BE CITED AS: | DPP v Olierook | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1847 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence — burglary — theft — possession of a drug of dependence — fraudulently using a licence plate — dealing with property suspected of being the proceeds of crime — use of an unregistered motor vehicle — failing to stop and render assistance — destruction of evidence — theft of a motor vehicle — theft of a car bonnet — driving while disqualified — plea of guilty — offending while on community correction order — post-traumatic stress disorder — PTSD — mental health — deterrence — licence disqualification — cumulation
Legislation Cited: Road Safety Act 1986 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Neskovski v The Queen [2022] VSCA 86; Abbott v The Queen [2021] VSCA 149; Bankal v The Queen [2019] VSCA 171; Vasilevski v The Queen [2018] VSCA 7; R v Verdins (2007) 16 VR 269
Sentence: Total effective sentence of seven years and six months with non-parole period of five years and six months
Section 6AAA declaration: 10 years with non-parole period of eight years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M Mahady | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr T Antos | Nelson Brown Legal |
HER HONOUR:
Introduction
1Troy Olierook, you have pleaded guilty to offending in respect of two indictments.
2First, on 27 May, and again on 1 July, you committed burglaries on commercial premises. The charges arising out of and in relation to these two incidents to which you have pleaded guilty are as follows:
(a) two charges of burglary, for which the maximum penalty is 10 years’ imprisonment;
(b) four charges of theft, for which the maximum penalty is 10 years’ imprisonment; and
(c) possession of a drug of dependence, for which the maximum penalty is one year imprisonment or 30 penalty units.
3You have also pleaded guilty to the following related summary offences:
(a) fraudulently using a licence plate, which carries a maximum penalty of two months’ imprisonment or 10 penalty units;
(b) dealing with property suspected of being the proceeds of crime, which carries a maximum penalty of two years’ imprisonment or 240 penalty units; and
(c) the use of an unregistered motor vehicle, for which the maximum penalty is 50 penalty units.
4The second group of charges to which you have pleaded guilty are all concerned with a collision occurring on 3 June 2020 at 8.07pm on the Princes Highway, Dandenong, when you were driving your vehicle, which struck and killed a pedestrian, Scott Alan Hickey.
5In relation to this incident, you pleaded guilty to one charge of failing to stop and render assistance contrary to ss 61(1) and (3) of the Road Safety Act 1986 (Vic), and the maximum penalty for that offence is a term of imprisonment of 10 years.
6You have also pleaded guilty to a charge of destruction of evidence, for which the maximum penalty is five years’ imprisonment, a charge of theft of a motor vehicle and a charge of theft of a car bonnet, both of which carry maximum penalties of 10 years’ imprisonment.
7You pleaded guilty to a further summary offence of driving while disqualified, which in your case (not being the first time you have committed this offence) carries a maximum penalty of two years’ imprisonment or 240 penalty units. This is a summary charge which spans the period of the two indictments, 27 May to 7 July 2020, and relates to a number of times when you drove unlicensed during that period, your licence having been suspended on 3 December 2019 for four years.
8Tendered on the plea were two summaries of prosecution opening which set out in full the agreed facts and circumstances of your offending. The circumstances of your offending were as follows and I begin with the burglaries and related charges.
Indictment No L11623292.1
9On 27 May and 1 July 2020, two commercial burglaries were committed in the Dandenong area.
10Burglary 1 occurred at Lattice Makers. It occurred at 3:09am on 27 May, when you and three unknown co-offenders attended at the commercial premises of Lattice Makers located at 12 Monterey Road, Dandenong South. Lattice Makers is a wholesale business which imports and manufactures lattice, bamboo screens, fence extensions, garden edging and stakes.
11You drove your co-offenders to the site in your vehicle. CCTV footage captures your arrival and your subsequent actions. At 3:19am, two of your unknown co‑offenders moved your vehicle, leaving you and another co-offender on the premises. CCTV footage captures various items being loaded onto a 2003 Mitsubishi Fighter tray truck, which belonged to Lattice Makers and which was parked on the premises. Between 3:20am and your departure, CCTV footage captures the truck being moved to various areas on the premises. At 4:01am, the truck is captured being driven on the premises towards the exit, loaded with lattice and raft product, followed by a restored vintage 1970 Ford Fairmont, both of which were stolen by you and your co-offenders.
12In addition to the vehicles, you stole a number of items from Lattice Makers:
(a) 26 x yellow half rafts;
(b) 45 x black bamboo half rafts;
(c) 56 x diagonal lattice (1800 x 1200);
(d) 49 x diagonal lattice (2400 x 1200);
(e) 51 x yellow full raft;
(f) 67 x willow screens 1.0H;
(g) 69 x willow screens 1.5H;
(h) 53 x willow screens 1.8H;
(i) 44 x fence woven panel 2400 x 500;
(j) 1 x Ryobi impact drill;
(k) 1 x bolt cutters;
(l) 1 x Cigweld MIG welder;
(m) 1 x Makita jigsaw cutter;
(n) 1 x mitre drop saw;
(o) 1 x Ryobi cordless drill;
(p) 1 x Ryobi chainsaw;
(q) 1 x whipper snipper;
(r) 1 x garden leaf blower;
(s) 1 x Karcher jetwash;
(t) 1 x garden shears;
(u) 1 x ASUS computer monitor and hard drive;
(v) 1 x Brother printer;
(w) 1 x portable computer memory pack 2TB; and
(x) 1 x USB stick 512GB.
13That incident encompasses charge 1, burglary, and charges 2 and 3, theft.
14The burglary was discovered by the factory manager of the business, who arrived at 6:00am and realised that the exit gate was open and the padlock to the gate was on the ground. The general manager rang police and reported the incident. The stolen vehicles were subsequently abandoned and located in Dandenong on 1 and 2 June 2020.
15A police investigation involving the identification of your vehicle and its movements, in addition to the CCTV footage, linked you to the burglary and the thefts. Your vehicle at the time was an unregistered 2009 Holden SS-V station wagon, which at the time of the burglary at Lattice Makers bore false registration plates. That is summary charge 7 of fraudulently using licence plates.
16Turning now to the second burglary which occurred at Logistical Solutions, this second burglary occurred at approximately 4:00am on 1 July 2020. On this occasion, you and your co-accused Mark Kupi and an unknown female attended at Australian Logistical Solutions, a wholesale freight forwarder located at 6/11 David Street, Dandenong. You arrived in your vehicle bearing false registration plates, and that is another incident of summary charge 7.
17You and your co-offenders used a grinder to cut the lock on the front gate, enabling you to drive your vehicle down the driveway. Once on the premises, you and your co-accused Mr Kupi jemmied open a side fire door through which you accessed the building. Once inside, 15 sets of Volkswagen Caddy vehicle keys and numerous security keys for poker machines were obtained from an unlocked key safe.
18You and Mr Kupi loaded three poker machines, numerous power tools and computer equipment into a 2017 Mercedes Vito van and a 2007 Mercedes Sprinter van, both of which belonged to the business. You and Mr Kupi then removed and stole internal CCTV cameras and a DVR hard drive unit before you entered and drove the Mercedes Vito, and Mr Kupi drove the Mercedes Sprinter away. Before leaving the premises, both you and Mr Kupi in your respective vehicles damaged a fourth poker machine by driving the stolen vans in and across the machine. CCTV cameras at the business captured the incident and revealed the clothing worn by you and the registration affixed to your vehicle.
19A couple of hours later, at approximately 6:40am, the two stolen vans were captured on CCTV footage arriving at 899 Wellington Road, Rowville, where they remained for five minutes until the Mercedes Vito van left. A witness saw the Mercedes Sprinter parked and items being moved from it into a Toyota Hiace. It was you who was transferring the items from the van to the other vehicle.
20At approximately 6:50am, the owner of the two stolen vans, Mr Albert Balot, contacted police and advised the GPS tracker on the Mercedes Vito was indicating it was idle in Flamingo Drive, Wantirna South. The van was retrieved from this location which was approximately 1.5 km from your residential address.
21Mr Balot subsequently provided investigators with a particularised list of items stolen from Australian Logistical Solutions, including:
(a) Swann CCTV cameras;
(b) Swann DVR (NVR-8000);
(c) Mercedes-branded silver-coloured briefcase containing diagnostic software;
(d) Security keys and motor vehicle keys with some custom lanyards;
(e) Repco tools;
(f) Paslode nail gun;
(g) Paslode frame gun;
(h) Narva LED workshop torch;
(i) HP Harvey Norman laptop;
(j) HP Envy computer system;
(k) Repco 2400 amp battery charger;
(l) Makita cordless hammer drill;
(m) Makita metal circular saw;
(n) Makita wood circular saw;
(o) Makita 36 V blower;
(p) 4 x Repco sockets sets;
(q) 4 x screwdriver sets;
(r) Dual Makita fast charger;
(s) 2 x single Makita fast charger;
(t) 4 x 5 amp batteries;
(u) 5 x 3 amp batteries;
(v) 2 x 6 amp Makita batteries;
(w) Repco 5 x LED torch brand;
(x) 1 x reversing camera kit;
(y) 1 x 18 V blower;
(z) Milwaukee hammer drill;
(aa) Milwaukee impact drill large;
(bb) Milwaukee impact drill small 2 sockets sets Sydney tools red case;
(cc) 2 x black case screwdriver sets Sydney tools;
(dd) 2 x Makita drill cases with impact and normal drills;
(ee) Bosche drills with impact and hammer drills;
(ff) Milwaukee 36 V blower;
(gg) Night Walker light; and
(hh) Portable 12 V air compressor.
22That is the factual summary in respect of charges 4, 5 and 6. A police investigation linked you to the burglary and related charges.
23On 7 July 2020, your vehicle was towed and placed in police possession for evidentiary purposes. It was subsequently examined by a crime scene officer who located two stolen Victorian registration plates under the front seat and a stolen battery charger in the rear passenger side footwell (summary charge 15).
Search Warrant Execution and Arrest
24At approximately 6:30am on 7 July 2020, police attended at your address. A black Holden GTS sedan, registration AYC311, was observed parked in the front of your address. You were observed to get into this vehicle and drive away (summary charges 6, 7 and 19).
25A Crimes Act 1958 (Vic) s 465 search warrant was executed at your residence. Clothing worn by you at the time of the burglary at Australian Logistical Solutions was located.
26Also located were:
(a) in a bedroom, 48.2 g of 1,4-butanediol, and that is charge 7, possess a drug of dependence;
(b) in the lounge room, a Tevo 3D printer with black adhesive paper and a white frame blue paint — police believe this machine was used in the printing of cloned registration plates; and
(c) in the roof of the shed in the front yard, five bags of window screening — the brand depicted on the item was ‘Willow’ with a barcode number.
27Also located at the address were several items which were of a similar description to those items stolen from Australian Logistical Solutions, and they are part of summary charge 15, deal with property suspected of being proceeds of crime:
(a) Milwaukee hammer drill;
(b) Milwaukee cordless impact driver, 12 amp battery with ‘Troy’ written on it;
(c) Milwaukee cordless drill;
(d) Milwaukee cordless torque wrench;
(e) Makita cordless sander;
(f) Makita cordless impact driver;
(g) 2 x Swann CCTV Cameras; and
(h) Makita cordless fast charger.
28Outside of the house, there were a number of metres of black Bamboo raft which had been affixed to the front of the house and the side gate. This item was identified as having been stolen from the earlier burglary at Lattice Makers.
Interview
29You were interviewed by police later that afternoon. You denied involvement in the burglary at Lattice Makers. In relation to the burglary at Australian Logistical Solutions, when police put to you that you could be identified on CCTV, you admitted your involvement. You told police that you were the owner of the unregistered blue Holden station wagon and that you were unlicenced to drive. You told police that you were responsible for everything located at your address.
30You were taken into custody on 7 July 2020.
Victim Impact Statements
31No victim impact statements have been received in respect of this matter.
Co-Accused’s Sentence
32In respect of your co-offender Mr Kupi, the matter was finalised on 4 November 2020 at the Dandenong Magistrates’ Court. He was convicted and sentenced to a term of imprisonment of 13 months as part of an aggregate sentence, with time held in custody of 119 days reckoned as a period of imprisonment already served under the sentence. The balance of his sentence was served by way of a drug treatment order with specific conditions.
33He pleaded guilty to the following charges in relation to the Australian Logistical Solutions burglary:
(a) burglary;
(b) two charges of theft of a motor vehicle;
(c) criminal damage;
(d) theft;
(e) deal with property being the proceeds of crime;
(f) unlicensed driving; and
(g) committing an indictable offence while on bail.
Indictment No L11623306.1
34I turn now to the charges arising out of and related to the collision in which Mr Hickey died.
35At approximately 7:30pm on Wednesday 3 June 2020, Scott Alan Hickey, then aged 36 years old, was observed sitting on a bench outside the front of the Ibis Hotel at 185–193 Princes Highway, Dandenong. The hotel manager described Mr Hickey as being noticeably under the influence of drugs or alcohol. His speech was slow and slurred and he was unsteady on his feet. The hotel manager offered to call Mr Hickey a taxi, but he declined and he left on foot.
36CCTV footage from ‘Good to Go Cars’ at 232 Princes Highway Service Road, Dandenong, showed Mr Hickey walking on and off the Princes Highway in the vicinity of the intersection of Adelaide Street several times, and that a number of vehicles had to take evasive action to avoid him, or in some cases stop and drive around him. One of these drivers saw Mr Hickey jump out in front of him from the centre median strip as he drove past.
37At approximately 8:07pm, Mr Hickey commenced walking southwest across the southeast bound lane of the Princes Highway and stopped in the centre lane as a vehicle approached. The vehicle did not appear to slow or deviate from its path and collided with Mr Hickey, knocking him to the ground and coming to rest on the right‑hand side of the centre lane. After briefly coming to a stop, and possibly putting the hazard lights on briefly, the driver accelerated away and continued generally southeast on the Princes Highway.
38The CCTV footage shows that approximately 15 seconds after Mr Hickey was struck, a group of five cars travelled southeast along the Princes Highway and were forced to stop due to the presence of Mr Hickey on the road. The occupants of a number of these vehicles rendered assistance to Mr Hickey until emergency services arrived. Mr Hickey suffered multiple injuries as a result of the collision. He went into cardiac arrest while being treated at the scene and he died prior to arriving at hospital.
39A post-mortem examination was conducted, during which samples were taken for drug and alcohol analysis. The samples disclosed the presence of both alcohol and methamphetamine in Mr Hickey’s blood.
40Detectives from the Victoria Police Major Collision Investigation Unit (MCIU) attended the scene at approximately 9:30pm on Wednesday 3 June 2020. They were unable to identify any pre‑impact braking marks from the vehicle but identified windscreen glass, several vehicle parts, and other debris that indicated approximately where on the roadway Mr Hickey had been struck.
41The vehicle parts located within the scene included a maroon-coloured ‘tow eye cover’, a grey and black driver side exterior mirror cover, and a crescent-shaped piece of black plastic. The mirror cover was quite distinct in that it appeared as though the original metallic grey colour had been sprayed matte black. A Google search of the identifying numbers on the tow eye cover and the mirror cover indicated that both parts had come from a Holden Cruze.
42A collision reconstructionist attended the collision scene at approximately 10:00pm on Wednesday 3 June and provided a report in regards to his observations and findings, stating:
In my opinion, based on all the evidence available to me, a male pedestrian has walked onto the Princes Highway, Noble Park and been struck by an unknown vehicle travelling in a south easterly direction on the Princes Highway.
If the vehicle that impacted the pedestrian was a Holden Cruze, it was travelling in the centre lane and travelling at between 67 and 70 km/h at impact.
The Investigation
43An extensive and complex police investigation was commenced in order to identify the vehicle and the driver involved in the collision.
44A CCTV footage canvas was undertaken in the immediate vicinity of the collision scene by investigators on Thursday 4 June, and footage was obtained from several locations and sources. Using this footage, investigators were able to confirm that the vehicle involved in the collision was indeed a Holden Cruze sedan and that, after striking Mr Hickey, the vehicle continued generally southeast along the Princes Highway before turning left into Airlie Avenue and then left into Gladstone Road.
45On Thursday 4 June, a witness contacted police regarding a damaged red vehicle he observed in the rear carpark of a factory complex at 8 Samantha Court, Knoxfield. The witness observed that the vehicle appeared to have ‘a dent in the bonnet on the very front driver side’. He took three photographs of the vehicle on his mobile phone and provided them to investigators. The vehicle was a red Holden Cruze with no numberplates and with the front windscreen removed. It was parked at the rear of the premises. There was damage to several panels on the vehicle. Due to police incorrectly recording the vehicle’s VIN, this vehicle was identified as being from Western Australia and was not reported stolen.
46On the evening of 4 June, police made an appeal through numerous media outlets for witnesses and for the driver to come forward. Information released to the media included that investigators had located vehicle parts within the collision scene that identified the vehicle as a 2010 to 2016 model Holden Cruze, and that they had established from CCTV footage that the vehicle they were looking for was a sedan.
47CCTV footage and tolling data was obtained from EastLink on 5 June, and investigators were able to identify a vehicle of interest exiting the southbound off‑ramp of EastLink, to the Princes Highway, at 8:06:45pm.
48Analysis of EastLink tolling data identified this vehicle as having Victorian registration YLY700. VicRoads identified this vehicle as a 2011 Holden Cruze sedan, red, registered to Lee-Anne Emery. Your partner was Jade Emery. Lee‑Anne Emery is her mother.
49Checks on the vehicle disclosed that this vehicle had been reported as stolen by Lee-Anne Emery on 3 June 2020. Ms Emery told police that Christie‑Lee Harloff had stolen her car. Ms Emery told police her daughter Jade had identified Ms Harloff as the perpetrator.
50Ms Emery told police that she stored her vehicle at 93 Harold Street, Wantirna, where you lived with Jade. She said neither you nor Jade had permission to drive her car. Investigators, however, determined that the car had been driven on at least two occasions in May 2020.
51On Saturday 6 June, there was another report to police about the red Holden Cruze sedan parked at the rear of 8 Samantha Court, Knoxfield. Police attended and this time correctly identified the vehicle as being the Cruze involved in the collision which killed Mr Hickey.
52Investigators identified that the front windscreen of the Cruze had been hacked out and removed from the vehicle. Glass on the ground around the vehicle indicated that the windscreen had most likely been removed at that location and a blanket had been placed over the windscreen opening. The ignition switch had been damaged and the ignition barrel removed. The barrel was observed lying in the bottom of the driver’s door pocket. The front tow eye cover, both external side mirror covers, and the fuel filler flap were all missing, and the vehicle was in a poor state of repair.
53The colour of the car appeared to be consistent with the colour of the tow eye cover that had been recovered at the scene of the collision. The front grille was black in colour and there was a crescent-shaped piece of the grille missing. The damage was documented and photographed before the vehicle was towed to the Victorian Police Forensic Services Centre at Macleod for forensic analysis.
54Through a comparison of photographs of the vehicle taken at the first attendance on 4 June with photographs taken at the subsequent attendance on 6 June, it was established that the vehicle had been further damaged after the first attendance. The grey and black left-hand mirror casing, which matched the one found at the scene, and the grey fuel filler flap, captured in the photographs taken, had been removed and the damaged bonnet had been replaced.
55CCTV footage was obtained from 8 Samantha Court and investigators were able to identify footage of the Cruze being driven into the driveway at approximately 7:09am on Thursday 4 June. The footage showed that while the driver side of the front windscreen was damaged, the windscreen was still fitted to the vehicle.
56An extensive review of CCTV footage was conducted by police to try to establish who damaged the Cruze at Samantha Court and when exactly it had occurred. CCTV footage from Samantha Court captured a stolen white Ford Econovan entering the driveway at that location at approximately 8:30am on 5 June driven by a male, whose clothing is clearly visible. The Econovan had been stolen on 5 June from a street in Vermont South.
57The CCTV footage captured the Econovan leaving 8 Samantha Court at approximately 9:14am and turning left to travel towards Gilbert Park Drive. CCTV footage from three different locations along Harold Street, Wantirna, captured the Econovan travelling west towards, and then beyond, Harold Street, which is your address, before turning right at a roundabout with Templeton Street and being parked in the car park of the Wantirna College.
58You are captured in the CCTV walking from the vicinity where the Econovan was parked back towards your house. You were wearing the same clothing as the driver of the Econovan.
59Police examination of the Cruze located at 8 Samantha Court established that it had been extensively modified using parts obtained from the stolen Ford Econovan and also using the bonnet from a vehicle which had been stolen in Fitzroy on 5 June.
60Trace DNA swabs were taken during the processing of the vehicles, and you were identified as a contributor to the blood located in the vehicles.
61Analysis of your mobile phone data obtained by police placed you in the vicinity of the collision on 3 June and near where the Cruze was dumped the following morning.
62At approximately 4:06am on 4 June, your phone was either switched off or had the SIM card removed. The phone and the SIM card have not been located by police and their whereabouts are unknown.
Arrest and Interview
63On Tuesday 7 July, you were arrested outside your address in Harold Street, Wantirna, before being conveyed to the Knox police station for the purposes of a record of interview. You told police you had no involvement in the collision which killed Mr Hickey. You told police Christie-Lee Harloff had stolen the vehicle and that you had told Lee-Anne Emery this on 5 June.
64You told police you had no involvement with the Cruze after it was stolen and that you had nothing to do with the damage to the Cruze and with its modification. You admitted there had been occasions when you had driven the Cruze while it had been stored at your home.
Plea of Guilty
65I turn now to your plea of guilty. These matters resolved on 14 December 2021. This is not an early plea. It occurred after a contested committal and, in respect of the offending concerning the collision which killed Mr Hickey, after a protracted period of lies and deception which involved the destruction of evidence and an attempt to falsely attribute blame to another person, Christie-Lee Harloff.
66Your plea has, however, spared the witnesses, the family of Mr Hickey, and the community the cost and trauma of a trial. It has utilitarian value, especially in the context of the ongoing delays in the administration of criminal justice in this State caused by the COVID-19 pandemic. I take your plea into account, and I give it the full mitigatory weight which attaches to it as discussed in the case of Worboyes v The Queen.[1] I accept your plea of guilty indicates that you have accepted full criminal responsibility for your actions. I will discuss the topic of your remorse later in these reasons.
[1] [2021] VSCA 169.
Victim Impact Statements
67Victim impact statements have been tendered in this matter. The following victim impact statements have been received by family members of the deceased:
(a) Janice Davies (Mr Hickey’s mother) dated 6 April 2021;
(b) Gary John Davies (Mr Hickey’s stepfather) dated 6 April 2021;
(c) Ken Hickey (Mr Hickey’s father) dated 19 May 2021;
(d) Michelle Hickey (Mr Hickey’s sister) dated 27 May 2021;
(e) Vicki Hickey (Mr Hickey’s stepmother) dated 3 June 2021; and
(f) Lisa Tew (Mr Hickey’s sister) dated 25 March 2021.
Janice Davies
68Janice Davies, Scott Hickey’s mother, says Scott’s death has caused heartbreak and despair in the family. She says she struggles to sleep at night due to her trauma and anxiety. She says she has tried to stay positive and continue working, but her overwhelming grief forced her to go into an early retirement.
Gary John Davies
69Gary John Davies is Mr Hickey’s stepfather. He says that Scott’s death has affected him enormously. He says that Scott’s death has left them all devastated.
Ken Hickey
70Ken Hickey is Mr Hickey’s father. He says his life will never be the same. He says the death of his son has been extremely difficult. He says he had many sleepless nights after the accident, and at times he felt he did not know how to move forward. He says that every court appearance opens up these feelings again.
Vicki Hickey
71Vicki Hickey is Scott’s stepmother. She says that Scott’s death has severely affected their lives. She says that her husband Ken was extremely depressed but could not see his other children during the lockdown. She says he lost motivation to work and had difficulty with their bills, which put stress on their relationship.
Michelle Hickey
72Michelle Hickey, Scott’s sister, says that her father’s phone call telling her of Scott’s death was by far the hardest moment of her life. She says for many months she could not let go, and her children suffered without having their ‘happy mum’. She says the pain, the flashbacks and the heartaches remain almost a year on. She says crossing the road causes her fear and triggers visions of what it might have been like for Scott.
Lisa Tew
73Lisa Tew is Scott’s sister. She says she was 16 weeks pregnant when Scott died. She says she could not grieve properly until her daughter was born, which caused difficulties with her partner and children. Ms Tew felt she could not properly support her parents due to the lockdown, nor could she receive physical support from her friends and family. She says she is angry that this happened to her family. She says the grief and distress of losing Scott will never leave.
74Mr Hickey was clearly a very well-loved member of the family and no sentence I can impose will restore Mr Hickey to his family and undo the pain and grief caused by his death. It is important for family members to understand that it is not alleged by the prosecution that the accused caused Mr Hickey’s death as a matter of law, and the charges to which he has pleaded guilty, and for which he will be sentenced, concern his behaviour in the aftermath of the collision.
Criminal Record
75You have a relevant and lengthy prior criminal history. You have numerous convictions for driving-related offences between 2007 and 2019, including dangerous driving, unlicensed driving, using an unregistered motor vehicle, failing an oral fluid test within three hours of driving, fraudulently using a registration label, and failing to report to police (owner not present). Your licence has been cancelled and you have been disqualified from driving multiple times. Most recently, on 3 December 2019, your licence was cancelled and you were disqualified for four years for unlicensed driving, careless driving, using a vehicle while displaying a registration other than that issued for the vehicle and refusing to provide a sample for testing.
76You also have multiple prior convictions between 2008 and 2018 for burglary, theft, intentionally destroying property, handling, receiving or retaining stolen goods, and drug possession. You have one prior conviction for aggravated burglary and recklessly causing injury in 2011, and two convictions for theft of a motor vehicle in 2016 and 2017.
77On 3 February 2020, you were convicted and placed on a community correction order for 24 months in the Ringwood Magistrates’ Court for dishonestly undertaking in retention of stolen goods and dealing with property suspected of being the proceeds of crime. This order was operational at the time of your offending and is an aggravating circumstance of your offending on both indictments.
Personal Circumstances
78I turn now to your personal circumstances. You were born in May 1988. You were 32 at the time of your offending and you are presently 34 years old. You were born in Cowes and grew up in the Cowes-Wonthaggi area. You have a number of half-siblings. Your parents separated when you were 12 years old. You remain close to your father and a character reference was tendered on your behalf from your father and your stepmother who continue to support you.
79You left school at 15. You told Ms Gina Cidoni, psychologist, with whom you met and who prepared a psychological report tendered at your plea, that you were a poor student.
80You lived with a partner in Dandenong between the ages of 18 and 25. You had some work in factories and you did work floor sanding with your father. In around 2011, you were involved in a motor vehicle accident. You were uninsured and this resulted in you filing for bankruptcy. You told Ms Cidoni you were also deeply affected by your grandmother’s death which occurred around this time.
81You separated from your partner and went on to form a relationship with Jade Emery in 2013. You have a daughter together, born in February 2014. You separated from Ms Emery in 2018. You were both using drugs. Child Protection became involved with your family. Your daughter now lives with her mother. You have telephone contact with her from prison, although you told Ms Cidoni you often become too emotional during contact with your daughter and other family members and tend to avoid contact when you can.
82You told Ms Cidoni that prior to going into custody, you had lived with a new partner for two years. It seems that either you were being untruthful or perhaps Ms Cidoni has become confused on this point because, in accordance with the ‘Summary of Prosecution Opening’, you were still living with Ms Emery and your daughter.
83You told Ms Cidoni that you had experienced depression and anxiety from a young age. You told her that after the motor vehicle collision in which you were involved in 2011, you suffered poor memory and your reading and writing skills deteriorated. I interpolate here to say this plea was adjourned for a period to allow defence to explore whether you had an acquired brain injury. Ultimately, there was no evidence put before the Court that you did.
84You started using cannabis at the age of 15. You went on to abuse alcohol and amphetamines and methamphetamine. Drug use has played a significant role in your offending history. Current drug screens were tendered on your behalf showing that you have been drug free in custody.
85Ms Cidoni conducted a number of psychological tests on you. She gives the opinion that your overall psychological presentation is disturbed and distressed. She gives the diagnoses of post-traumatic stress disorder (‘PTSD’), adjustment disorder with a disturbance of conduct, and major depressive disorder.
86She gives the opinion that your depression is likely referable to your childhood and teenage years when your parents separated and when you began drug use. She gives the opinion that your PTSD is likely referable to the collision in which Mr Hickey was killed, but may also be referable to earlier events. She says that your adjustment disorder is also referable to the collision in which Mr Hickey died. She says you remain unable to come to terms with your actions and feelings of guilt. She says you are deeply ashamed and profoundly affected.
87On the effects of incarceration, Ms Cidoni says,
Prison for Mr Olierook is a heavy burden as a result of his maladjustment and mental illness with intensely painful feelings of anxiety, distress, and sadness. Isolation periods during the pandemic have led to rumination [and] distress. He has a chronic and debilitating major depression and there is potential for self-harm. This could worsen his mental state and trajectory.
Objective Seriousness
88I turn now to consider the objective seriousness of your offending and I begin with the burglaries and related offending.
89This was serious offending. You were on a community correction order at the time. The two burglaries were committed at night in company and a significant amount of property was stolen in each burglary. It was your vehicle on each occasion, bearing false registration plates, that was used. There was some degree of pre-planning involved in both burglaries. If you did not target specific businesses, then at the very least you were out at night looking for a suitable target. You had a grinder to gain entry in the second burglary.
90Parity arises in sentencing you in respect to the second burglary. It is not an easy exercise here, given Mr Kupi was sentenced in the Magistrates’ Court and I have no information about the basis upon which his plea was entered in that jurisdiction, with its jurisdictional sentencing limits, and what was the factual basis of his plea. I do know that you have a more sustained and serious criminal record, and I know also that you were involved in an equally serious commercial burglary only weeks earlier. As has been discussed, you were on a community correction order which aggravates your sentence, whereas Mr Kupi was not. In these circumstances, in my view, it is open to me to impose a more substantial sentence on you for your role in this offending than was imposed on Mr Kupi.
91The charge of failing to stop and failing to render assistance is objectively very serious offending and your moral culpability is very high. It is an inherently serious offence, carrying a maximum penalty of 10 years’ imprisonment. It is the most serious charge that you now face. The penalty was increased five-fold back in 2005 to give better expression to the sentencing principle of general deterrence and to better reflect the community’s disapproval of this kind of conduct, which has variously been described as reprehensible, callous and inhumane — descriptors which are all equally fitting.
92You have pleaded guilty to a single charge which encompasses both your failure to stop and your failure to render assistance. These are recognised as discrete heads of criminality which, when contested, are charged separately.[2] You have pleaded guilty and one of the benefits to you, by virtue of your plea, is that your conduct in failing to stop and help Mr Hickey is being dealt with by way of a single charge with a single maximum penalty. Nevertheless, the sentence that I impose on this charge must take into account your full criminality, which consists of two distinct and equally blameworthy acts.
[2] Neskovski v The Queen [2022] VSCA 86.
93You must have been aware after you struck Mr Hickey that his condition was perilous, and yet you left him. It was a full 15 seconds before other drivers came upon him. As Ms Mahady, who appeared to prosecute, pointed out in her written submissions, you left Mr Hickey with no thought of whether anyone would help him.
94Your offending is aggravated by you being on a community correction order at the time. It is aggravated by you being an unlicensed driver. It is also aggravated by your attempts at concealment. Here, I am careful not to aggravate your offending by reference to your concealment and modification of your vehicle. That has been charged separately and I will sentence you separately on that charge. Your offending on the charge of failing to stop and render assistance is aggravated, however, by your attempts to falsely implicate another. This was grossly dishonest and malicious behaviour in which you involved both your partner and her mother.
95On the charge of the concealment of evidence, I regard this as a serious example of that offence. You not only hid your vehicle, but you took a number of complex and calculated steps to disguise and modify it using stolen vehicle parts, and this occurred over an extended period.
Submissions of the Parties
96I turn now to the submissions of the parties and my conclusions.
97It was Ms Mahady’s submission on behalf of the prosecution that this was serious offending in respect of both indictments, calling for a substantial term of imprisonment.
98On the charge of failing to stop and render assistance, she provided me with a number of comparable cases,[3] and I have had regard to those cases. They have been of some assistance in formulating an appropriate sentence for you, but, ultimately, I must sentence you on the particular facts and circumstances of your case.
[3] See ibid; Abbott v The Queen [2021] VSCA 149; Bankal v The Queen [2019] VSCA 171; Vasilevski v The Queen [2018] VSCA 7.
99Mr Antos, who appeared on your behalf, did not dispute the serious nature of your conduct, nor your disgraceful behaviour in its aftermath. He did submit that I should regard your attempt to falsely implicate another as unsophisticated and bound to be discovered. That may be so, but that does not make it any less dishonest or deserving of punishment.
100In mitigation, Mr Antos relied on your plea of guilty, indicative of some contrition, he submitted. He also relied upon the report of Ms Cidoni and her opinion that you suffer from PTSD, adjustment disorder and major depressive disorder as engaging Verdins principles 1, 4, 5 and 6.[4] That is, acting to reduce your moral culpability and the application of specific deterrence, and in support of a finding that your mental health difficulties will make your time in custody more onerous than that of a prisoner in robust mental health, and that your mental health may further deteriorate while in custody.
[4] R v Verdins (2007) 16 VR 269 (‘Verdins’).
101Ms Mahady submitted in response that, on the basis of Ms Cidoni’s report, only Verdins limb 5 was engaged. I accept the submission of the prosecution on this point. Ms Cidoni in her report is unclear whether your mental health difficulties are referable to earlier traumas or developed in response to the fatal collision in which Mr Hickey died. On this basis, I cannot conclude you were suffering any mental health disorder at the time of your offending which would moderate your moral culpability or the application of specific deterrence.
102I do accept you are presently suffering the conditions described and this makes your time in custody more difficult, and I will take this into account in sentencing you, but there is nothing in Ms Cidoni’s report which allows me to conclude that your condition is likely to deteriorate and, accordingly, that is a matter I disregard in sentencing you. So, to be clear, I only find the applicability of Verdins limb 5 and I give it some modest application in this sentencing exercise.
Application of Sentencing Principles
103Yours is extremely serious offending, Mr Olierook. The sentencing principles of general and specific deterrence, denunciation and community protection are all engaged in sentencing you. You have a sustained and serious criminal record, and I can find no explanation for your behaviour, other than you are unable to rehabilitate and lead a productive and law-abiding life in the community. Drug use would have played its role, no doubt.
104Having said this, it is perhaps obvious that I find your prospects of rehabilitation to be demonstrably poor. I find you have not demonstrated any real, full and insightful remorse for your conduct, but, having said that, it is important to emphasise that your plea of guilty, whether or not it is indicative of remorse, remains an important matter in sentencing you in the current climate and in accordance with the principles expressed in Worboyes.[5]
[5] Worboyes v The Queen (n 1).
105Taking into account all the matters I am required to under the Sentencing Act 1991 (Vic) and matters personal to you, I intend to sentence you as follows.
106You are convicted on all charges indictable and summary.
107On indictment L11623292.1, which I will call the ‘burglary indictment’, you are sentenced as follows:
· On charge 1, burglary, you are sentenced to two years’ imprisonment.
· On charge 2, theft, you are sentenced to 18 months’ imprisonment.
· On charge 3, theft, you are sentenced to 18 months’ imprisonment.
· On charge 4, burglary, you are sentenced to two years’ imprisonment.
· On charge 5, theft, you are sentenced to 18 months’ imprisonment.
· On charge 6, theft, you are sentenced to 18 months’ imprisonment.
· On charge 7, possession of a drug of dependence, you are sentenced to two months’ imprisonment.
108On the second indictment, L11623306.1, which is the indictment in relation to failing to stop and render assistance, you are sentenced as follows:
· On charge 1, failure to stop and render assistance, you are sentenced to four years’ imprisonment.
· On charge 2, destruction of evidence, you are sentenced to two years’ imprisonment.
· On charge 3, theft of a motor vehicle, you are sentenced to one years’ imprisonment.
· On charge 4, theft of a car bonnet, you are sentenced to nine months’ imprisonment.
· On summary charge 7, fraudulent use of a vehicle numberplate, you are sentenced to one months’ imprisonment.
· On summary charge 15, deal with property suspected of being the proceeds of crime, you are sentenced to six months’ imprisonment.
· On summary charge 19, using an unregistered motor vehicle, you are fined $100.
· On summary charge 8, driving while disqualified, you are sentenced to six months’ imprisonment.
109Charge 1 on the indictment which relates to the death of Mr Hickey, failing to stop and render assistance, is the base sentence. I make the following orders for cumulation upon that charge and upon each other: in relation to the indictment which relates to the death of Mr Hickey, cumulation of one year on the sentence on charge 2, destruction of evidence, and three months’ cumulation on charge 3, theft of a motor vehicle. On the burglary indictment, I make the following orders for cumulation: one year of the sentence on charges 1 and 4, and three months’ cumulation on summary charge 8.
110That makes a total effective sentence of seven years and six months. I am directing that you must serve a period of five years and six months before you are eligible for parole.
111Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of 10 years with a non-parole period of eight years.
112Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 836 days of the sentence I have passed upon you, not including today, and I direct that that be entered into the records of the Court.
Licence Cancellation
113On a conviction for an offence against the Road Safety Act 1986 (Vic) where a person is killed as a result of an accident, there is mandatory licence disqualification for at least four years. In your case, I propose to disqualify you from obtaining a driver’s licence for a period of four years and six months, effective today. What that will mean, Mr Olierook, is if you get parole at the earliest opportunity, there will be some implications for your licence beyond that period.
114I make the disposal and forfeiture orders sought by the prosecution.
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