Director of Public Prosecutions v Paisley
[2015] VCC 1034
•20 July 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01085
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON BRIAN PAISLEY |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 July 2015 | |
DATE OF SENTENCE: | 20 July 2015 | |
CASE MAY BE CITED AS: | DPP v Paisley | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1034 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr W Stougiannos | Office of Public Prosecutions |
| For the Accused | Mr G Traczyk | Emma Turnbull Lawyers Pty Ltd |
HER HONOUR:
1 Jason Paisley you have pleaded guilty to two charges of theft of a motor vehicle and three charges of reckless conduct endangering a person.
2 The maximum penalty applicable to the charge of theft is ten years’ imprisonment. In addition in relation to theft of a motor vehicle, your licence is required to be cancelled and disqualified pursuant to s.89 Sentencing Act 1991. The maximum penalty applicable to the offences of reckless conduct endangering a person is five years’ imprisonment.
3 These crimes arise out of events which occurred between 1 and 5 September 2013.
4 It is not necessary for me to recount in great detail the facts of this matter, as they have been opened in some detail by the learned prosecutor (Exhibit A). I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious. In addition, you have a disturbing and relevant criminal history.
5 Turning firstly to Charge 1. Between 1.30pm on 1 September 2013 and 8.15am on 2 September 2013, a green Falcon station wagon was stolen from an address in North Carlton. The car was valued at about $5,000. That car was subsequently located outside an address in Delahey at about 2.10pm on 2 September 2013, the same time a second car was stolen.
6 On 3 September 2013 fingerprints which matched yours were located on the exterior of the driver’s side window of that car. You abandoned the first stolen car then stole a second car.
7 Turning to Charge 2. At about 2.10pm, a white HSV Holden Maloo utility was stolen from an address at Delahey. It was valued at approximately $91,000. That car was subsequently found in Taylors Hill at about 4.35am on 6 September 2013, and was partially damaged.
8 An examination of that vehicle by police revealed your fingerprints and DNA on the steering wheel, a Medicare card in your name, a Centrelink document in your name and two pieces of paper, one with a phone number of your mother written on it. Inside the car was also a receipt for a purchase from Coles Glenroy on 5 September 2013. CCTV footage showed you purchasing cigarettes and a lighter.
9 There had been a number of observations of that HSV vehicle prior to 5 September 2013, that is, prior to your offending in Charges 3, 4 and 5. You, of course, are sentenced only for your offending before me in Charges 1 to 5 and not your driving otherwise.
10 You were seen at 2.25pm on 2 September 2013 in Kensington, driving erratically and loudly.
11 At about 12.30am on Wednesday, 4 September, the HSV was seen by police driving erratically and through a red light in Broadmeadows. Police performed a U-turn and attempted to catch the car, but were unsuccessful.
12 At about 5.50pm on Wednesday, 4 September 2013 police noticed the car being driven in a normal manner at an intersection in Broadmeadows.
13 The HSV was next seen between 5.45pm to 7.15pm on 5 September 2013 driving erratically and at a high speed in Richmond and Carlton.
14 At 7.15pm the car was seen driving at a high speed on the wrong side of the road in Carlton, in the vicinity of pedestrians and people on bikes. A female cyclist, Alex Merory, was forced to steer her bike from the road to avoid being struck by the car. She called Crime Stoppers to report the matter.
15 Soon after that, at about 7.28pm, Ms Merory, was riding her bike on Royal Parade, and again saw the car drive past her at a high rate of speed through an intersection at Parkville. A traffic light camera at the intersection revealed the car was travelling at 128 kilometres per hour. Ms Merory again called police.
16 Within a couple of minutes of that, at approximately 7.30pm the HSV was observed to collide with and damage a car in Carlton and not stop. Three minutes later, at 7.33pm, the HSV was seen in Barry Street, Carlton, by Constables Brannigan and Woods. It was driven towards the police car. Officer Brannigan turned on the police van’s flashing lights and stopped the police car sideways in an attempt to block the car.
17 The HSV continued driving slowly until it was about ten metres in front of the two officers, then sped round the driver’s side of the van yelling words of an aggressive nature at the officers. The HSV then turned left at high speed into Grattan Street, which caused the rear tyres to lose traction and the engine to rev loudly.
18 At about 7.54pm, Officers Brannigan and Woods again saw the HSV in Brunswick driving slowly towards them. The police stopped their car. You drove past them on the driver’s side.
19 That HSV was then seen by Officers Blundell and Benedetti, relevant to Charges 3 and 4, at about 7.54pm in Brunswick East, driving at a high speed towards them. Officer Blundell had to take evasive action to avoid a collision.
20 Despite that action, the HSV driven by you rammed the front side of the police van, causing damage to both cars, the police van being immobilised by the damage. The two police officers in that vehicle were placed in fear, and as I have said, that conduct comprised Charges 3 and 4 on the Indictment. You continued driving, without stopping, then colliding with a Toyota Camry. Again you did not stop.
21 Approximately a minute later, relevant to Charge 5, police officers Ansell and Jordan saw the HSV driven by you on Victoria Street, Brunswick East. Officer Jordan activated the police car flashing lights and attempted to move the police car to block the road. Officer Ansell exited the car, as he had seen the HSV collide with the car driven by Blundell and Benedetti. He feared the HSV may attempt to ram the police car he was in. You drove at a fast rate of speed around the road-block, and directly at Officer Ansell who was standing outside the police car in the middle of the road. He was forced to jump out of the way to avoid being struck by the car. Officer Ansell estimated the car was travelling at about 70 kilometres per hour. It is that conduct which comprised Charge 5.
22 You continued to travel in a westerly direction on Victoria Street into Moonee Ponds. The four officers to which I have previously referred, pursued your vehicle as far as Pascoe Vale Road. You were observed at one stage to be travelling at about 135-140 kilometres per hour in a 60-kilometre zone, and 100 kilometres in Mount Alexander Road, also a 60-kilometre zone.
23 Due to the possible danger of persons and property, the police pursuit was terminated.
24 You were arrested on 7 October 2013.
25 You had, at the date of the time of your plea hearing, spent 637 days in custody by way of pre-sentence detention, which comprised two periods in custody and a short period between 27 August 2014 and 5 September 2014 on bail, which you breached.
26 You have admitted an extensive and relevant prior criminal history before me, with your most recent prior court appearance on 13 December 2012. Your history reflects a number of dishonesty offences and, also concerningly, similar driving offences.
27 You appeared at Melbourne Magistrates’ Court on 13 December 2012 on a number of charges, with that offending having occurred on 17 October 2012. You were seen driving a stolen vehicle at Frankston North and were told to stop by police. You refused and continued driving, at which time a short pursuit was initiated. You drove down the wrong side of the road before pulling into a car park at a local church.
28 For this and other offending you received a sentence of 12 months’ imprisonment.
29 On 16 July 2010, you were before the Court on a charge of failing to stop after an accident and reckless conduct endangering serious injury, amongst other charges. Before me was a summary of that offending which occurred on 13 October 2009. That involved you stealing a motor vehicle, and whilst in possession of that stolen vehicle attending Chadstone shopping centre. Whilst inside the shopping centre patrolling police checked the vehicle and ascertained it was stolen. The attending police, two female constables, took up a position to conduct surveillance of the vehicle.
30 You returned to the vehicle and the police members approached you. You entered the driver’s seat of the vehicle, reversed out of the car spot at a high rate of speed with the car behind you, that car being stationary and driven by a female. You moved your vehicle forward, and again reversed into the same car that was behind you, before driving towards the two police members who had to move quickly to get out of the way of your vehicle. You drove from the scene and were unable to be located. Your driving related to not only police officers but also a civilian.
31 For those and other offences you received an aggregate sentence of two years and four months imprisonment with a non-parole period of 14 months.
32 On 8 February 2006 you were before the Broadmeadows Magistrates’ Court on two charges of reckless conduct endangering life, and driving in a manner dangerous. There was not a summary before me of that offending. On those and other charges you were sentenced to 12 months imprisonment.
33 On 29 May 1998 you were before the Court on charges of theft of a motor vehicle and driving in a manner dangerous, amongst other charges and were sentenced to 12 months on each charge to be served concurrently.
34 At Melbourne Magistrates’ Court on 26 August 1997, you were before the Court on a charge of reckless conduct endangering serious injury, drive reckless/dangerous, exceeding speed limit, and a number of other driving offences. No summary was provided regarding that offending, however again revealed your relevant and troubling prior history. You were sentenced to a total of three months’ imprisonment.
35 There were a number of other prior court appearances referred to in your admitted criminal record.
36 You have also appeared at court subsequently, relevant when assessing your prospects of rehabilitation.
37 You appeared at court on 28 January 2014 on charges that arose during the period of your initial remand for your offending before me. On 15 July 2014 you were dealt with on a charge of unlawful assault which predated your offending before me. At Melbourne Magistrates’ Court on 3 February 2015 you appeared on a charge of theft of a motor vehicle, that offending also having occurred prior to your offending before me. You were also then dealt with for contravening a condition of your bail, and using cannabis. As previously stated, your bail on the charges before me was revoked on 5 September 2014.
38 Regarding your rehabilitation prospects I have at best, guarded optimism, as I discussed with counsel. Your history to date gives me little, if any confidence, you can be successfully rehabilitated. However, having said that I must when determining the appropriate sentence, seek to maximise your chances of rehabilitation as they may be.
39 You have pleaded guilty to these charges, and you are entitled to have that taken into your account in your favour, and I do so. The community has, by your plea, been spared the time and cost of a trial, and witnesses have been spared the need to give evidence upon your trial. Your offending occurred in September 2013, and you were charged with these offences on 7 October 2013. In the interview conducted that day you answered “no comment” to a number of questions. It was, of course, your right to answer in that way. You also, in other answers, denied your offending (q.115, q.100+, q.77++).
40 The matter proceeded to a contested committal on 17 and 18 June 2014. You first offered to plead guilty to these charges on 12 May 2015. That plea offer, you thought was accepted, however there appears to have been a misunderstanding by the prosecution regarding your plea offer. Ultimately, your original offer of 12 May 2015 was accepted on 20 May. I accept your plea offer on these charges was made on 12 May 2015. Your trial was due to commence on 13 July 2015, however of course, that proceeded as a plea.
41 Whilst your plea of guilty has come late in the piece, and after a contested committal, you have ultimately pleaded guilty to these charges, and that is a relevant consideration when determining the appropriate sentence.
42 Counsel who appeared on your behalf provided a written outline of submissions for your plea hearing (Exhibit 1).
43 Mr Traczyk, who appeared on your behalf at the plea hearing, referred to the circumstances of your offending, in particular Charges 3, 4 and 5.
44 He appropriately conceded there needed to be some cumulation of sentence in relation to each of the charges.
45 He also conceded your criminal record “spoke for itself”, conceding it was troubling, and that you had a similar prior offending history.
46 Mr Traczyk turned to your personal history. You are 35 years of age at sentence. Your past has involved illicit drug use. In your recent custody you were on the Methadone Program, the first time as I understood it, you had made attempts to address your drug use.
47 Regarding your recent breach of bail, this occurred when you failed to report, such being a requirement of your bail. Police attended your home and detected you had been using cannabis.
48 You have a 5 year old son who currently lives with your mother, as the mother of your child has psychological problems and drug issues, meaning, as I understood it, that she was unable to care for him. Your son visits you in custody with your mother.
49 Mr Traczyk conceded your prospects for the future were “up in the air”. Upon release you planned to reside with friends.
50 You instructed that the Melbourne Remand Centre had been in lockdown since 30 June, and I accept that is so. You instructed since that time there has only been 10 minutes a day when you were out of your cell, that your cell has been stripped of all personal possessions, and you did not have any change of clothes. Attempts were going to be made to confirm the latter. I received correspondence dated 13 July 2015 which stated that since the lockdown you (and all other prisoners) were allowed 10 to 20 minutes outside your cell daily and had all your personal items confiscated from the cells. No records were kept as to when prisoners “swapped” clothing.
51 It is clear the prison has been in lockdown, and that there has been inconvenience as a result. Lockdowns are not uncommon in prison, although this has been of some duration. It is only speculation as to when that will change. Ultimately, that impact on your sentence seems to me to be a matter appropriately dealt with administratively and not reflected in your sentence for the offending before me. Beyond sentence I do not know what your circumstances will be in custody. It is not my role to take into account any administrative decision regarding sentence, and I do not take such matters into account.
52 No references, reports or other material were relied upon by Mr Traczyk.
53 Mr Traczyk referred to the lack of victim impact statements from the victims relevant to Charges 3, 4 and 5 in particular. I discussed with him the statements made by the officers at the time of your offending, and that such could be taken into account. In that regard, I note Officer Ansell referred at the time of your offending, to being in fear for his life. That he felt he could have been seriously injured or killed. I am conscious, of course, that the charge before me is of conduct endangering serious injury but that, however, was nevertheless how Mr Ansell felt at the time of your offending. I note the three officers had been given an opportunity to prepare victim impact statements and had not.
54 Mr Traczyk confirmed his written submission that the time served then of 637 days as at 13 July 2015 was the appropriate sentence, and that you should not be required to serve anything beyond that.
55 His secondary submission, without abandoning his primary submission, was that the then 637 days could represent the total non-parole period.
56 His third submission, without abandoning either his primary or secondary position, was that I could consider the imposition of the term of imprisonment already served, at that time being 637 days in combination with a community correction order.
57 I discussed with Mr Traczyk the recent decision of Boulton & Ors[1] and further decisions relevant to that including DPP v Maxfield[2] and Alam v The Queen[3]. It is clear sentencing courts are required to rethink the conventional wisdom about whether prison is really the only option (Alam para 20).
[1] [2014] VSCA 342
[2] [2015] VSCA 95
[3] [2015] VSCA 48
58 I did not understand Boulton, however, to say that the other principles stated in s.5 Sentencing Act 1991 were no longer applicable, nor did I understand the Court of Appeal in Boulton to say that principles relevant to particular types of offending previously stated by our Court of Appeal over many years now amounted to nought. Nor did I understand the decision of Boulton to remove the instinctive synthesis of sentencing.
59 It has always been that a term of imprisonment must be the last resort of the Court, and that all other sentencing options be considered prior to imposing an actual term of imprisonment.
60 In Marocchini v The Queen[4], the court referred to Boulton but also noted in that case, amongst other things, the relevance of a significant prior criminal history.
[4] [2015] VSCA 29
61 Each case ultimately depends on its own facts and circumstances relevant to the gravity of the offending and all matters relevant in mitigation of sentence.
62 Taking into account all those relevant sentencing considerations, in my opinion, the combination disposition urged by Mr Tracyzk is not appropriate.
63 Mr Stougiannos, on behalf of the prosecution, submitted your offending was very serious and also pointed to your relevant and similar prior history.
64 Mr Stougiannos referred to the need for general and specific deterrence and also for denunciation of your offending. He further submitted there was also the need to protect the community from you when sentencing.
65 Mr Stougiannos agreed that, at best, your rehabilitation prospects were guarded.
66 The prosecution submitted, in relation to the specific submissions made by Mr Traczyk regarding disposition, that time served would be at the “bottom end” of a non-parole period. Mr Stougiannos also referred to Boulton as now being a viable part of sentencing.
67 As well as matters personal to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
68 Specific deterrence is also necessary when sentencing you. You have a number of prior matters of a similar nature, involving driving and resultant danger caused to members of our community.
69 I must also consider the question of the protection of members of the community from you, and bear in mind the likelihood of your re-offending. This continues to concern me.
70 I am also called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose just punishment.
71 In sentencing you I have taken into account the principle of totality. In my opinion the number of days you have served to date in custody would not be the appropriate disposition to reflect all relevant matters when sentencing.
72 On Charge 1, you are convicted and sentenced to 12 months’ imprisonment.
73 On Charge 2, you are convicted and sentenced to 12 months’ imprisonment.
74 On Charge 3, you are convicted and sentenced to 18 months’ imprisonment.
75 On Charge 4, you are convicted and sentenced to 18 months’ imprisonment.
76 On Charge 5, you are convicted and sentenced to 2 years’ imprisonment.
77 Charge 5 is the base sentence, and I direct the following in relation to cumulation and concurrency.
78 I direct that 3 months of Charge 1 be served cumulatively upon Charge 5.
79 I direct that 4 months of Charge 2 be served cumulatively upon Charge 5.
80 I direct that 5 months of Charge 3 be served cumulatively upon Charge 5.
81 I direct that 6 months of Charge 4 be served cumulatively upon Charge 5.
82 For clarity, the orders for cumulation are upon each other and upon the base sentence and that results in a total effective sentence of 3 years and 6 months’ imprisonment, and I direct that you serve a period of 2 years and 6 months before you are eligible for parole.
83 Any drivers licence you hold is cancelled and you are disqualified from obtaining a licence for a period of 4 years from today’s date. In determining the length of the disqualification, I note the decision of R v Lefebure[5] and R v Franklin[6].
[5] (2000) 31 MVR 131
[6] 52 MVR 544
84 Pursuant to s.6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 5 years, and set a non-parole period of 3 years and 6 months.
85 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 643 days in custody (up to and including yesterday, 19 July 2015) by way of pre-sentence detention, and I direct that that be entered into the records of the Court.
86 The prosecution also made application for a Disposal Order which no longer refers to your Medicare card, consistent with your counsel’s submissions and correspondence I received on 13 July. Absent that item, counsel on your behalf consented to the making of that order, and I make the order in the terms sought.
87 All right. Any other orders?
88 MS CAVKA: No, Your Honour.
89 HER HONOUR: All right. Just to make it clear, at the outset when I referred to the three charges of reckless conduct endangering a person, I was using the shorthand summary of statement of offence. It is clear I am referring to endanger of serious injury because I referred to the appropriate maximum penalty and I also later in the sentencing remarks refer to exactly the same charges that are before me. So that is just stated to avoid any confusion.
90 The disposal order has been signed, absent as I understand it, the reference to the Medicare card. I will just double-check that. Yes, it has been crossed out. All right. Any other orders? Any other matters? No? All right.
91 MS CAVKA: No, Your Honour.
92 HER HONOUR: Thank you. Yes. All right. Thank you. Thanks, Mr Paisley, you’re right to go. Thank you very much for that.
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