Director of Public Prosecutions v Paton

[2019] VCC 2125

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR 19-01532

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL PATON

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Bairnsdale
DATE OF HEARING:	11 December 2019
DATE OF SENTENCE:	13 December 2019
CASE MAY BE CITED AS:	DPP v Paton
MEDIUM NEUTRAL CITATION:	[2019] VCC 2125

REASONS FOR SENTENCE
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Subject:
Catchwords: Aggravated car jacking – other less serious offending - no special reason to depart from mandatory minimum non-parole period – guilty plea – relevant criminal history – family support - heart disease – reasonable rehabilitation prospects – total effective sentence 3 years 10 months imprisonment – non-parole period of 3 years
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Accused	Mr D. Taylor

HIS HONOUR:

1Mr Paton, stand for a moment please.  I will give you my reasons for sentence now.  You will understand that the law requires me to impose a non-parole period of not less than three years on the aggravated carjacking charge.

2The total effective sentence I will impose will be three years and ten months and fix a minimum non-parole period of three years.  So I will give my reasons for that now and you can be seated.

3Daniel Paton, you have pleaded guilty to one charge of handling stolen goods and one charge of aggravated carjacking.  You have also pleaded guilty to the following summary offences, drive in a manner dangerous, refuse to undergo a breath analysis, drive whilst disqualified and going equipped to steal.

4The circumstances of your offending are set out in the prosecution opening upon plea.  They are agreed facts.  Your offending occurred on two different days.

5In summary, on 26 December 2018 at Wodonga police spoke to you when you were lying on the rear seat of a parked motorcar.

6The car, and three number plates, a Navman sat nav and ID cards in the car were stolen.  You had them in your possession knowing they were stolen.  That is you had dishonestly retained them, which is Charge 1, handling stolen goods.

7In a backpack you had a pair of bolt cutters, a tomahawk, a pipe wrench and gloves.  That constitutes the summary charge of going equipped for stealing.

8Then, on 3 January 2019 at Cann River two tourists who were on a camping holiday stopped their car to help you when they saw you standing by the side of the road appearing distressed.  When the woman got out of the car and went to the boot to get a bottle of water for you, you reached through the open driver's window and turned off the car's engine.

9You yelled at the man who was in the driver's seat to get out of the car and that you were taking it.  When he refused you punched him multiple times through the window and tried to grab the car keys.  When he resisted you, you said, pointing to the bush, you would get your gun if he did not give you the keys.

10The woman got back into the car and when she leaned across to protect her companion you punched her arm.  She pushed you away and you pushed her to the throat.  She called emergency services.  The man eventually gave you his keys.  You opened the driver's door and dragged him out.  You then got in the car and drove off.  That conduct constitutes the aggravated carjacking and as well the summary charge of drive whilst disqualified.

11A short time later a police officer arrived and he saw you in the car speeding past.  The car slid sideways around the corner onto the wrong side of the road and out of sight.  That conduct constitutes the summary charge, drive in a manner dangerous.

12About half a kilometre down the road you collided with a tree.  When police arrived you walked out from the bush and the police officer arrested you.  He dragged you clear when the car burst into flames.  Cann River CFA and ambulance and another police officer arrived.  When you were asked to undergo a preliminary breath test you were highly abusive and refused.  That is the summary charge of refuse to undergo breath analysis.

13An ambulance took you to Bairnsdale Hospital.  The next day when police interviewed you you exercised your right to remain silent. 

14The man who stopped to help you suffered a split lip, swollen cheeks and a sore jaw.  He also had bruising and grazes to his upper body.

15Both he and his companion were terrified and feared for their lives when you confronted them.  I have read their victim impact statements.  The woman lost all her belongings and the man lost the car, a camera, a computer and camping gear worth $10,000 or more.

16You have admitted a criminal record.  You have numerous summary convictions for dishonesty, drug, domestic violence, driving and street offences from October 2007 until December 2018 in northern New South Wales and southern Queensland.

17You served short terms of imprisonment from three months to nine months in 2012, 2014 and 2016.  You also appeared at the Wangaratta Magistrates' Court on 22 October 2018 when you were sentenced to 28 days' imprisonment for driving and dishonesty offences.

18I turn now to your personal circumstances which are set out in the psychological report of Pamela Matthews. 

19You were born on 9 December 1986 and are now aged 33 years.  You grew up at Batlow in the southern slopes region of New South Wales.  You have two brothers, one a twin and the other older.

20Your parents separated when you were very young.  When you were around ten years old your mother repartnered.  You had a good relationship with your stepfather but saw little of your father.  When you were around 12 years old you moved with your family to Mullumbimby.  There you started smoking cannabis.

21At 15 you left school and got work as a concreter.  For the next nine years you worked hard, six days a week, and saved a considerable amount of money.  When you started using illegal stimulants and drinking heavily, things deteriorated.  By the time you were 23 you had lost your job, your savings and your long-time girlfriend.

22After that, you were using methylamphetamine and were in and out of gaol.  In the months leading up to your offending you were drinking and using methylamphetamine daily. 

23In late 2018 you were released from Port Phillip Prison after serving the term of 28 days' imprisonment.

24You moved into a share house in Glenroy and over Christmas you met up with your twin brother.  The two of you were in Albury.  You wanted to go to Batlow, your brother wanted to return to Victoria.  On the day of the carjacking you had an argument with him and got out of the car near where the touring couple had stopped to help you.

25You told Ms Matthews it was hot, you were dehydrated and had trouble breathing.  You were without your medication and panicked.  In 2018, you were diagnosed with a serious heart disease, cardiomyopathy, for which you were prescribed a number of medications.

26Your symptoms have included shortness of breath and panic attacks.  It is a hereditary condition and I was told your father died from it four to five years ago.  In relation to your offending on 3 January 2019 you said to Ms Matthews, 'I'd like to say sorry about the day and what I did to them.  I wish I could turn back and it never happened, how scared they must have felt and how stupid it was'.

27When she assessed you, your mental state was normal.  You have no history of any mental disorder or illness.  In her opinion, a panic attack could have been a trigger to your offending.  Your abuse of methylamphetamine and alcohol was also likely a contributing factor.

28You admitted to Ms Matthews problems with managing and regulating your behaviour when under the influence of drugs or alcohol.  She recommends you would benefit from treatment from drug and alcohol abuse and offender behaviour programs.

29Mr Casement, who appeared on your behalf, in commendably concise but comprehensive written and oral submissions relied on the following factors in mitigation of penalty: your early plea of guilty, made when your case proceeded to this court by an uncontested hand up brief, your remorse, evidenced by your guilty plea, and expressions of contrition, your cardiac disease, your positive response to your time in custody where you have engaged in the work offered to you and undertaken alcohol and drug problems made available to you and have also successfully abstained from use of alcohol and drugs.

30He also relied on your family support.  You have regular phone contact with your mother and brother and also your five year old daughter. 

31Mr Casement did not submit there was any special reason which might satisfy me the mandatory minimum non-parole period should be imposed in respect of the aggravated carjacking charge.  Mr O'Doherty, who appeared for the prosecution, submitted your offending was objectively serious and as Parliament has directed stern punishment must follow.

32You have never committed a crime so serious as the aggravated carjacking before.  I accept panic was possibly a contributing factor but, as you knew when you are affected by drugs and alcohol, your impulse control is poor.

33I have moderated your total effective sentence to take into account your early guilty plea for its utilitarian value and your acceptance of responsibility, in addition to your remorse, which I find is genuine, and your ill health, that is your heart disease, and your prospects of rehabilitation which I find to be reasonable provided you use your time in prison to address your alcohol and drug problems.

34Because you are to be sentenced for multiple offences in two separate episodes I must have regard to the totality principle which requires me to ensure your total effective sentence is a just and appropriate measure of your total criminality.

35Mr Paton, please stand.  By the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation.  Taking into account the circumstances of your offending, your personal circumstances and antecedence and in endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:

36On Charge 2, aggravated carjacking, you are convicted and sentenced to three years and nine months' imprisonment.

37On Charge 1, handling stolen goods, you are convicted and sentenced to three months' imprisonment and on the summary charge of going equipped to steal you are convicted and sentenced to one month's imprisonment.  I order one month of the sentence I have imposed on Charge 1 be served cumulatively upon the sentence I have imposed on Charge 2, and that the sentence I have imposed on the summary charge be served concurrently with the sentences I have imposed on Charges 1 and 2.

38Your total effective sentence is three years and ten months and I order you to serve three years of that term before you are eligible for parole release. 

39On the summary charges of drive in a manner dangerous, refuse to undergo breath analysis and drive whilst disqualified you are convicted and fined an aggregate sum of $1000.

40Additionally I order all Victorian licences and permits held by you be cancelled and you be disqualified from obtaining any further licence or permit for three years from 3 January 2019. 

41I declare but for your plea of guilty I would have imposed a sentence of five years' imprisonment and fixed a non-parole period of four years.

42Under the Confiscation Act I order forfeiture of the backpack containing the tools and a pair of shorts.

43Mr Paton, I declare that you have already served 352 days of your sentence by way of pre-sentence detention. 

44Are there any other matters, Mr O'Doherty?  Mr Taylor?

45MR O'DOHERTY:  No, Your Honour.

46MR TAYLOR:  No, Your Honour.

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