Director of Public Prosecutions v Oliver

[2020] VCC 503

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01835

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHARI OLIVER

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 April 2020
DATE OF SENTENCE:	27 April 2020
CASE MAY BE CITED AS:	DPP v Oliver
MEDIUM NEUTRAL CITATION:	[2020] VCC 503

REASONS FOR SENTENCE
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Subject: conduct endangering persons, recklessly cause injury
Sentence: 9 months imprisonment, Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant
For the Offender	Mr J. Portelli

HIS HONOUR:

1You have pleaded guilty to two charges of conduct endangering persons for which the maximum penalty on each charge is imprisonment for five years.  You have also pleaded guilty to two charges of recklessly causing injury for which the maximum penalty in relation to each charge is also imprisonment for five years.  The charges each arise from one incident.

2In addition, you have pleaded guilty to two related summary charges.  Charge 10 is a charge of committing an indictable offence whilst on bail.  The maximum penalty for this summary offence is imprisonment for three months.  Summary Charge 14 is a charge of failing to answer bail.  The maximum penalty for this summary offence is imprisonment for two years.  This latter charge relates to failing to answer bail after you were charged and bailed on the indictable offences I have set out above.

3The circumstances of your offending are set out in a summary of prosecution opening dated 12 November 2019.  That document was tendered in evidence and marked as Exhibit A.  The relevant parts of it were read in open court by the prosecutor, Mr Grant.  Your counsel, Mr Portelli, did not dispute that the prosecution summary is accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you.  In those circumstances it is not necessary that I here repeat in detail that which is set out in the prosecution summary and I will set out the facts in an abbreviated way.  These sentencing remarks should however be read in conjunction with all that is set out in the summary of prosecution opening.

4On 6 July 2018 you were in a Honda motor vehicle which had been the subject of police observations earlier that day.  At about 6.20 pm Leading Senior Constable Scott Andrews and Senior Constable Levina Bell observed the Honda vehicle.  They were in a marked police car and they activated the lighting and siren on that police car in order to intercept the Honda.  The Honda was observed to be travelling south on the Calder Highway at Kangaroo Flat.  It was necessary for the police to make a U-turn in order to carry out the intercept.  Police officers were in uniform and wearing high visibility vests.

5The Honda in which you were a passenger was being driven at all relevant times by your co-offender, Ammar Najjar.  He initially stopped the Honda and got out of the car and was standing towards the rear of it.  You were seated in the passenger seat.  As the police approached Najjar rushed back behind the wheel of the Honda and attempted to escape from the police.

6As the prosecution summary vividly describes, a confrontation followed with the police whereby you and Najjar, whilst attempting to escape police, physically struggled with the police whilst at times the Honda was moving on and across the roadway, with the police outside of the vehicle but attempting to stop Najjar from driving away.  The roadway was relatively busy with other traffic and the incident and struggle with the police caused interference to the traffic.

7Your role at all times in the offending was that of trying to assist Najjar in getting the vehicle moving away from the scene in order to avoid apprehension by the police.  You assisted by moving the gear shift lever of the Honda whilst seated in the passenger seat, and whilst police were attempting to arrest Najjar, who was the driver of the vehicle, and to wrest control of the Honda from him.  As the police were outside of the Honda but leaning into it, seeking to control the steering and the gear shift, you struggled to also control the gear shift and you attempted to eye gouge one of the officers whilst screaming verbal abuse at both of them.  (Charges 3 & 4).

8Your conduct in Charges 3 and 4 by assisting Najjar by your actions clearly placed each of the police officers in danger of serious injury, and that is what happened.  By assisting Najjar in the way that you did you recklessly caused injury to each of the officers, who were injured as a result of the very dangerous situation created by Najjar, in which you assisted him.  (Charges 5 & 6).

9Both officers were injured and were admitted as patients overnight at Bendigo Hospital.  Senior Constable Andrews suffered a broken rib, back soreness, cuts and abrasions.  Leading Senior Constable Bell suffered a fractured wrist, cuts to the head, and other minor cuts and abrasions.

10Both you and Najjar were drug affected at the time, which helps explain but does not excuse your offending.  Najjar is older than you and has a past criminal record.  He has been charged with more serious offences and is yet to be dealt with.  He was clearly the principal offender whom by your actions you assisted.  However, there are clear distinguishing features in the conduct of each of you and it is conceded there are no parity issues that need be addressed in the sentencing of you.

11Clearly these are very serious examples of what are serious offences.  
Mr Portelli appropriately conceded the gravity of your offending.  Committed, as they were, against police officers in the execution of their duty makes each of these offences very serious.  Regrettably, offending against police officers is becoming more commonplace.  Virtually every day this court is reminded of just how difficult the job of being a dedicated police officer in the service of the community as a whole can be.  This case again highlights that regrettable fact.  For this reason, in sentencing for offences of this kind, especially against police officers, the court must have proper regard to the sentencing principles of general deterrence and denunciation.  Those who would seek to offend in this way must realise that if they do so and are apprehended they are subjecting themselves to the strong likelihood of imprisonment.

12Although you have no prior convictions, at the time that you committed these offences you had been charged in relation to unrelated matters.  Those other matters have subsequently been dealt with in the Heidelberg Magistrates' Court.

13Mr Portelli submitted, and I accept, that this offending was not planned and was a spontaneous reaction by you and Najjar to having been approached by the police.  He submits that much of the danger involved in this situation was created by Najjar, who was the one pressing the accelerator from the driving position.  Having made those submissions, Mr Portelli appropriately conceded that you played an active role in the offending by acting in the way that you did.

14You and Najjar in fact succeeded in immediately avoiding apprehension, and you fled the scene of confrontation with the police in the Honda vehicle, but you were both soon after arrested about 20 kilometres from where the acts that are the subject of these charges took place.  The following day you were charged and admitted to bail.  There was a filing hearing on 13 July 2018 and a committal mention on 3 October 2018 but you failed to appear.  On 26 November 2018 you were arrested on warrant and granted bail until 28 November 2018, when the matter was to be listed for mention.  However you did not enter bail until
11 January 2019, when you were released from custody.

15There was a further committal mention on 23 January 2019 and a contested committal was booked in for 10 September 2019, however the matter resolved prior to any cross-examination of witnesses after you and Najjar agreed to plead guilty to certain offences.  You were both remanded in custody, where you have remained.

16It is agreed between Counsel that you have served 264 days by way of pre-sentence detention, a period just short of nine months' imprisonment.

17You have pleaded guilty to the charges and that is to your credit.  Although you did not plead guilty at the earliest possible opportunity, for the purposes of sentencing I treat you as having pleaded guilty at an early time.

18By your pleas of guilty you have saved the time and cost of a trial, and importantly, you have saved each of the victims, the two police officers, from being cross examined and having to relive the very dangerous situation that you and your co-offender subjected each of them to.  Also, by your pleas of guilty you have accepted responsibility for your offending and you have advanced the administration of justice.

19I also treat your pleas of guilty at an early time as an indication of your remorse for your offending.  Mr Portelli told me that you had instructed him that you feel embarrassed and ashamed of your conduct.  I accept that to be the position.

20I admitted into evidence on the plea victim impact statements from Scott Andrews and Levina Bell.  Both have suffered greatly as a result of the conduct of both yourself and Najjar.  They have each suffered not only physical injury but emotionally and psychologically.  I think it is fair to say that each of them will carry the effects of what can only be described as an awful encounter with you and your co-offender for the rest of their lives.  They will have it with them on each shift that they work respectively as police officers, and they will carry the awful experience with them in their usual lives as citizens who have family and loved ones to consider.  In passing sentence I have taken the contents of each of the victim impact statements into account, as I must.

21I turn to some matters relating to your background circumstances.

22You were born on 13 July 1993 and you are now 26 years of age.  At the time of the offending you were aged 23.  You fall to be sentenced as a youthful offender of Aboriginal descent with no prior convictions.  The period of almost nine months imprisonment that you have served is your first ever time in custody.

23You identify as being of Aboriginal heritage traced back to your father's family, which is ancestrally linked to a community in South Australia.

24Your general background can, I think, be properly described as tragic.  Your parents separated at a young age.  Your father was a patched member of an outlaw motorcycle gang.  When you were very young he was jailed, having been convicted of attempted murder.  He served a term of 13 years in prison.  Both your parents were polysubstance drug abusers.

25You were raised by a maternal aunt in Tasmania.  Your mother, who was a heroin addict, later came to Tasmania and worked bagging potatoes.  You told Mr Geoffrey Cummins that you were sexually abused in Tasmania by an adult male when you were aged between seven and 10 years.  I was told and accept that this was the first disclosure by you of sexual abuse.  You have had no treatment for this.

26Your education was minimal.  You received home schooling until Year 7 and after that you worked in retail.  You had your first child to a man named Tyrone at age 13, and a second child to the same man at the age of 15.  Both children remain in the care of their father's family in Tasmania and you do not see them.

27You have two other children aged five and three and they were both in your care until approximately mid-2018.  At that time you were involved in a car accident and you were injured and you lapsed into drug use.  The children are now in the care of DHHS, where they have remained since May of 2018.  Your objective, which I accept, is to work positively towards regaining custody of your two children when released from prison.

28You had been in a relationship with your co-offender, Najjar, for approximately two years at the time of this offending.  Both of you were unemployed and you were both addicted to drugs.  I was told, and accept, that Najjar is a man with a significant criminal history who subjected you to physical violence during the course of your relationship with him.

29Mr Cummins has given the opinion, which I accept, that because of your upbringing and the fact that you never really had parents that you could turn to for either assistance or guidance, you suffer from what he described as "unresolved attachment issues", which led to you having misguided loyalty to Najjar.  Put another way, he may have been a most unsatisfactory person in many ways, but he was all you had, and that is what led you into this offending as well as your drug use.  You told Mr Cummins that your relationship with your co-accused has now ended and I accept that to be the position.  However, because I think your prospects for a complete rehabilitation are reasonable if you get appropriate help to help you rid yourself of drugs, in order to give you the best possible chance of rehabilitation I will be making it a condition of a community corrections order that you do not associate with, or communicate with your co-offender in any way for the period of the community corrections order.

30At the time of offending you were using the drug ice and GHB.  You have been using these drugs since about the age of 18, and as I noted above, your daily use had increased prior to the time of the offending and after you had met your co-accused.  You have had little or no treatment for your drug problem.  In early 2019, whilst in custody, you returned a positive urine screen, but I was not told of any further positive tests whilst in custody.  You told Mr Cummins, and I accept, that you recognise that you have a drug problem and you want to engage in intensive treatment.  I was told, and accept, that you have been assessed as suitable to engage in a residential drug treatment program conducted by an Aboriginal welfare organisation known as Ngwala Willumbong residential program at Winja Ulupna.  I intend to make it a condition of the community corrections order, which I will soon make, that you undergo treatment and counselling for your drug problem, and it is my understanding that Corrections will direct you to undertake and engage with this program.

31Whilst in custody on remand you have undertaken and completed a number of programs that were available to you, and I have received into evidence certificates evidencing your completion of these courses.  Some of those programs were drug specific courses.

32Whilst in custody you have had few, if any, visitors.  You lack structures and networks outside of prison and you will need assistance when you are released to put the relevant structures and networks in place.  With proper help and treatment I have formed the view that your prospects of rehabilitation are reasonable.  As I said earlier, your background and upbringing is tragic, and it is to your credit, I think, that you have come before the court for the first time, as you do, at the age of 26.

33Mr Portelli submitted that I should impose a combination sentence of a term of imprisonment equivalent to time served and a community corrections order.  In a written outline of submissions, and in court, Mr Grant told me that that his instructions were that such a disposition was within the appropriate sentencing range.  The question is whether time served with the community corrections order will appropriately address all of the purposes of sentencing in this case.

34I have taken the view that the sentence that I will impose of nine months' imprisonment and a community corrections order with appropriate conditions for a period of two years will properly address the purposes of sentencing in this case.  I have had you assessed as to the suitability for the making of a community corrections order in combination with a term of imprisonment, most of which you have already served, and you have been assessed as being suitable for such a disposition, although I note you have been assessed as being at high risk of re-offending.  That is why I propose some fairly strict conditions, including judicial monitoring by me.

35On Charge 3, conduct endangering persons, you are convicted and sentenced to a term of imprisonment of nine months.

36On Charge 4, conduct endangering persons, you are convicted and sentenced to a term of imprisonment of nine months.

37On Charge 5, recklessly causing injury, you are convicted and sentenced to a term of imprisonment of nine months.

38On Charge 6, recklessly causing injury, you are convicted and sentenced to a term of imprisonment of nine months.

39On Summary Charge 10, committing an indictable offence whilst on bail, you are convicted and sentenced to a term of imprisonment of one month.

40On Summary Charge 14, failing to answer bail, you are convicted and sentenced to a term of imprisonment of one month.

41Each of these sentences will be served concurrently.

42In addition, on Charges 3 to 6 on the indictment I make a community corrections order for a period of two years commencing upon your release from custody with the following conditions:

·     that you undergo assessment and treatment (including testing) for drug abuse or dependency as directed;

·     that you undergo mental health assessment and treatment as directed;

·     that you engage in offending behaviour programs, as directed, and that you undergo assessment programs and courses aimed at addressing factors relating to your offending and participate in such programs and courses as directed;

·     that you undergo assessment and treatment (including testing) at a residential facility for withdrawal or rehabilitation from drug use or dependency as directed.  In relation to this condition it is my intention that you be admitted, as soon as possible after your release from custody, to Ngwala Willumbong residential program at Winja Ulupna;

·     that you undergo supervision;

·     that you not meet with, or communicate in any way with, or associate in any way with your co-offender Ammar Najjar;

·     that you undergo judicial monitoring by me, with the first such judicial monitoring to occur three months after you have been discharged from Ngwala Willumbong residential program at Winja Ulupna.

43I declare that there has been 265 days already served by way of pre-sentence detention relating to the sentences passed this day and direct that 265 days be reckoned as having been already served, be entered into the records of the court, and be deducted administratively.

44For the purposes of s.6AAA of the Sentencing Act 1991 I state that had it not been for your pleas of guilty to the charges at an early time I would have imposed a total effective sentence of four and a half years' imprisonment and I would have directed that you serve a minimum term of three years before being eligible for release on parole. Are there any questions arising out of that?

45It'd be 265, Your Honour.

46HIS HONOUR:  Two sixty-five days ‑ ‑ ‑ 

47MR GRANT:  Yes, Your Honour.

48HIS HONOUR:  ‑ ‑ ‑ pre-sentence detention.  Very well.  Mr Portelli, do you have any questions?

49MR PORTELLI:  No, sir.

50HIS HONOUR:  Ms Oliver, you've heard that - the sentence that I've imposed.  The nine month sentence should expire shortly.  You understand?

51OFFENDER:  Yes.  Yeah.

52HIS HONOUR:  And it will be necessary for you to report, on your release, to the Melbourne Justice Service Centre at 50 Franklin Street, Melbourne.  You understand that?

53OFFENDER:  Yes.  Yeah.

54HIS HONOUR:  And you'll have to do that within two days of your release.  Can you hear me all right?

55OFFENDER:  Yes, (indistinct words).

56HIS HONOUR:  Now, I've made it a condition that you will be judicially monitored by me.  Ms Gallagher, can you hear me?  Is Linda there, but she can't speak?

57TIPSTAFF:  Yes.  She has to unmute herself.

58HIS HONOUR:  Linda, can you unmute your phone?  Your computer?  Can you hear me, Linda?

59ASSOCIATE:  I can hear you.  I'm here.

60HIS HONOUR:  Can you hear me now, Linda?

61TIPSTAFF:  She has.  She's heard you.

62HIS HONOUR:  Linda, can you tell me the date of the first judicial monitoring?

63ASSOCIATE:  26 September.

64HIS HONOUR:  Now, Ms Oliver, the first time that you'll – the judicial monitoring will be 26 September next at 9.30.  You understand?

65OFFENDER:  Yes, Your Honour.

66HIS HONOUR:  And you'll have to come into the court here, or we – depending upon where you're living at the time we might be able to arrange to do it by video link, but you'll have to come here – you'll have to be available for judicial monitoring on 26 September at 9.30.  All right?

67Now, the other thing you need to understand is this.  That you must comply with all of the conditions of the community corrections order.  Do you understand that?

68OFFENDER:  Yes, I do.

69HIS HONOUR:  If you do not, you'll be brought back before me and re-sentenced.  Do you understand that?

70OFFENDER:  Yes.

71HIS HONOUR:  And you could have to serve a further term of imprisonment if that happens, and I don't want that to happen, so please take advantage of the community corrections order.

72OFFENDER:  Yes, Your Honour.

73HIS HONOUR:  Now, Mr Portelli - my associate will tell me if I'm wrong – I think the papers for the community corrections order have been transmitted to Dame Phyllis Frost.  Linda, has that occurred?

74ASSOCIATE:  Yes, Your Honour.

75HIS HONOUR:  Ms Oliver, do you have any papers there with you?

76OFFENDER:  Um, no, Your Honour.

77HIS HONOUR:  I'm sorry, I didn't hear what she said?

78MR PORTELLI:  I believe she said no, Your Honour.

79HIS HONOUR:  We'll have to arrange to get those signed.

80MR PORTELLI:  Yes, sir.

81HIS HONOUR:  When I leave the Bench I'll have my tipstaff leave the video link open for a short time for you to confer with Ms Oliver.

82MR PORTELLI:  Thank you, Your Honour.

83HIS HONOUR:  Could you please remind her of the ‑ ‑ ‑ 

84MR PORTELLI:  Yes.

85HIS HONOUR:  ‑ ‑ ‑ judicial monitoring date?

86MR PORTELLI:  Yes.

87HIS HONOUR:  And also her obligations under the community corrections order.  I'd be grateful if you'd go through them with her, Mr Portelli.

88MR PORTELLI:  I will, Your Honour.

89HIS HONOUR:  Thank you.  Very well, I'll terminate the link to the Bendigo Court.  We have to get – all right, 10 o'clock tomorrow.

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