Director of Public Prosecutions v Pennington
[2023] VCC 721
•24 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01440
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JARROD PENNINGTON |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 January 2023, 27 March 2023 and 21 April 2023 |
| DATE OF SENTENCE: | 24 April 2023 |
| CASE MAY BE CITED AS: | DPP v Pennington |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 721 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges of theft of motor vehicle, recklessly exposing an emergency worker to risk by driving, a charge of damaging an emergency service vehicle, dangerous driving while pursued by vehicle, assaulting an emergency worker on duty resisting an emergency worker on duty, possession of a drug of dependence and hailing stolen goods – offending occurred while drug-affected, unlicenced, on bail and subject to a community corrections order – significant criminal history – considerations of Bugmy – early plea of guilty – Covid-19 hardship – existing injury aggravated whilst in custody – totality
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v R [2013] HCA 37; Worboyes v R [2021] VSCA 169; Surtes v R [2023] VSCA 42; Crawford v R [2018] VSCA 113; Nelson v R [2020] VSCA 219; Hutchison v R [2021] VSCA 235; Smith v R [2020] VSCA 165; DPP v Bullard [2020] VCC 243; R v Sutherland [2021] VCC 200; DPP v Rule [2021] VCC 234; DPP v Meldrum [2021] VCC 1734; DPP v Jackson [2021] VCC 1659
Sentence:31 months imprisonment. Non-parole period of 20 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Paganis | Office of Public Prosecutions |
| For the Accused | Mr J. Lavery | Richard Davis & Associates |
HIS HONOUR:
1Jarrod Pennington, I will sentence you to a total effective sentence of 31 months' imprisonment. I will set a non-parole period of 20 months' imprisonment. Excluding today, I will declare the 462 of your pre‑sentence detention as time served under my sentences today.
2You have pleaded guilty to a charge of theft, a charge of the aggravated offence of recklessly exposing an emergency worker to risk by driving, a charge of damaging an emergency service vehicle, a charge of dangerous driving while pursued by vehicle, a charge of assaulting an emergency worker on duty, a charge of resisting an emergency worker on duty, a charge of possession of a drug of dependence, and a charge of hailing stolen goods. Additionally, you have pleaded guilty to nine summary charges.
Circumstances
3The circumstances of your offending are set out in a document entitled 'Summary of Prosecution Opening', which is Exhibit A. Your counsel agrees with its contents.
4At the time of your offending, there was an unexecuted warrant for your arrest. You had been on bail but had failed to answer your bail on 9 December 2021 and the warrant was issued. These circumstances constitute Summary Charge 21, failing to appear on bail.
5Also at this time, you were subject to a community correction order and the order was made on 16 April 2021 for a period of 12 months.
6In relation to the events of 2 and 17 January 2022, you were a disqualified driver. The two occasions of your driving while disqualified constitute Summary Charge 7, a rolled-up charge of driving while disqualified.
2 January 2022
7At about 10.50 am on 2 January 2022, you were driving a vehicle in Commercial Road, Morwell. You were driving at oncoming traffic by swerving into the oncoming lanes. This constitutes the Summary Charge 22, dangerous driving.
8Your vehicle did not show registration number plates and, more particularly, was unregistered. This constitutes Summary Charge 27, using an unregistered motor vehicle on the highway.
9Police members driving a police vehicle tried to intercept you and they did so by operating the lights and siren of their motor vehicle. Far from stopping, you sped off, travelling through an intersection and then out of sight. This constitutes Summary Charge 24, failing to stop on police request.
10You drove along Ann Street at a speed greater than the limit of 50 kilometres per hour. You drove through the intersection of Ann Street and Maryvale Crescent at speed and without regard to whether other vehicles were approaching the intersection. This constitutes Summary Charge 26, careless driving.
17 January 2022
11Between 8 and 11.20 pm on 13 January 2022, persons unlawfully entered a house at Princes Drive, Morwell. They stole medicine, jewellery, a handbag and its contents and a key. The key was used to steal a Toyota Camry Sedan which was parked in the garage. These offenders have not been identified.
12At 11.43 am on 17 January 2022, police members found you and your partner, Kylie Cormack, in the front seats of the stolen Toyota Camry Sedan. You were in the driver's seat. You were asleep. This constitutes Charge 1, theft of a motor vehicle.
13As the police members approached the motor vehicle, you woke up and started the engine. Two police members put a type of deflation device behind the right rear wheel. Nevertheless, you reversed the motor vehicle, nearly striking the two police members, and your vehicle struck the side of a police divisional van. You then drove away at speed. A number of police members were standing nearby as you drove away. They had to take evasive action to avoid being struck by your vehicle.
14These circumstances constitute the first occasion of the rolled-up charge, Charge 2, of aggravated reckless exposure of emergency workers to risk by driving. The circumstances also constitute the first occasion of the rolled-up charge, Charge 3, damaging an emergency service vehicle. Finally, they constitute Summary Charge 5, failing to stop on police request.
15The tyre deflation device worked to the extent it partly deflated the rear right-hand tyre of your vehicle. This caused you to swerve dangerously. You then drove dangerously through the streets of Traralgon and Traralgon West while fleeing from the pursuing police. Ultimately, you were seen in Scrubby Lane, which is in a densely populated residential area.
16Police vehicles were chasing you. Each had its red and blue lights flashing and were sounding its siren. These circumstances constitute part of Charge 4, dangerous driving while pursued by police.
17After driving from Scrubby Lane into Crosses Road, both of the driver's side tyres of your vehicle disintegrated. This pursuit in those circumstances constitutes the remaining circumstances of Charge 4, dangerous driving while pursued by the police.
18Owing to the damaged tyres, your vehicle was travelling slowly. A police vehicle drew up beside your vehicle and nudged it onto the nature strip. Even then, you would stop the vehicle. You accelerated and struck another police vehicle which was trying to block your path. This constitutes the second occasion of damaging an emergency service vehicle, being Charge 3.
19You left the vehicle and ran away. The police chased you and, while trying to catch you, you swung and flailed your arms wildly, during which you struck a female police member’s face, cutting and bruising her nose and causing it to bleed. She required medical attention. These events constitute Charge 5, assaulting an emergency worker; and resisting an emergency worker, Charge 6. The last comprised of three occasions of resisting involving three police members, including the female police member.
20Ultimately, the police members were able to overpower and arrest you. Two police members searched your vehicle. They found a small zip lock bag containing cannabis. This constitutes Charge 7, possession of cannabis.
21They also found:
(a) a Victoria learner permit in someone else's name;
(b) watches, a bracelet and earrings belonging to the persons whose house had been burgled four days earlier; and
(c) various cards belonging to one of the owners of the burgled house.
22These items constitute Charge 8; handling stolen goods.
23The registration plates on your vehicle, ending 9BJ, were stolen. This circumstance is part of the stolen goods in Charge 8.
24You were so affected, apparently, by substances that you were not interviewed that day. You underwent an oral fluid test which revealed the presence of methylamphetamine. This and other circumstances constitute Summary Charge 31, driving under the influence of drugs.
25You were questioned by police members the next day. You told them:
(a) you knew the Toyota Camry Sedan was stolen. You exchanged drugs for it;
(b) you denied intentionally ramming the divisional van;
(c) you admitted being drug-affected, having taken a large quantity of GHB a day before the incident;
(d) you denied possessing cannabis; and
(e) you expressed regret for your offending through turning lesser charges into more serious ones.
Victim Impact Statements
26There are two impact statements, both from members of the police force.
Female Police Member
27The female police member made her statement on 15 September 2022. The assault caused a cut and swelling to the bridge of her nose. This has left a scar and a bump, of which she is conscious.
28Psychologically, the effect was more serious. You left her tearful for weeks. She sought help from police welfare and a psychologist. Despite a holiday shortly afterwards, she still feels exhausted and run down most of the time. She has nightmares in which she relives the assault.
29She has lost confidence. This caused her to decline the higher duties of acting senior sergeant through fear of breaking down. It has slowed the prospects of her promotion.
Male Police Member
30A male police member made his statement on 30 September 2022. He is a senior constable. The incident brought home to him the possibility of being killed in the course of his work. He had never thought of that in the past. It makes him wonder whether he should remain a police member.
31He has lost confidence and feels anxious performing road policing. This is something he had previously loved. He has lost trust in other road users. He has stopped discussing his work at home. If he did, he feels his family might try to persuade him to leave the police force.
Criminal History
32Between 3 March 2005 and 16 April 2021, you have appeared in Victorian criminal courts on 20 occasions and have been found guilty or convicted of 192 charges. You have been sentenced to detention and imprisonment, including partly or wholly suspended sentences, on 17 occasions. Your longest sentence of imprisonment was 18 months, imposed on 12 September 2011.
33You have prior convictions for these offences:
(a) driving while disqualified or suspended - one, but 12 are such matters for unlicensed driving;
(b) drink or drunk driving - four;
(c) assault - seven;
(d) drugs - seven; and
(e) bail offences - 13.
34Your counsel points to the period between 2014 and 2017 where you did not offend. During that time, you and your long‑term partner, Ms Cormack, moved to Korumburra with your parents and your children.
Personal
35You are now 35. You are an only child, but you have an older half‑brother and three older half‑sisters. Although born in Tasmania, you were raised in Central Victoria. Your parents were alcoholics. Your father was physically violent to you, whether he was sober or not. Your father died in 2019.
36Given your parents, it is unsurprising you spent much of your childhood in foster care or youth justice facilities. Even the foster care was unstable in the sense that you were placed in more than one. There was a transition from foster care to residential care to youth detention and, ultimately, prison. Plainly, the considerations in Bugmy's case are relevant. I will discuss that later.
37At 20, you entered a relationship and produced a son, Trey, now aged 10. It ended because of your drug abuse.
38For the last 10 years, you have been in a relationship with Kylie. It has produced seven children. Overall, you have eight children and all of them live with their grandparents. Your access or contact with them is frequently interrupted by the intervention of Human Services.
39You were expelled from secondary school in Year 7. Apparently, you retaliated through an assault after being humiliated by the school's vice principal. That was the extent of your education, which is decidedly limited.
40Since the age of 19, you have received a disability support pension.
41Over the past five years, you have used cannabis and methylamphetamine in heavy quantities.
42During your arrest, you suffered injuries to your neck. You now walk with a stick.
43While in custody, you undertook a peer education training program and now work as a peer educator. You completed a 24‑hour substance awareness program, a 12‑hour substance use program, and a 12-hour psychoeducation program. You have attended courses in small business and Koori art.
44You are currently prescribed Avanza and olanzapine. I note you were assessed as suitable for the Court Integrated Services Program[1]. You were not granted bail and did not enter the program.
[1] Report dated 2 May 2022.
Psychologist
45Aaron Cunningham is a psychologist. At the request of your solicitors, he interviewed you on 29 November 2022 and reported[2]. A good deal of what I have said about your personal life comes from his report.
[2] Report dated 30 November 2022.
46Dr Cunningham administered various tests. He did not find an intellectual disability but did find significant deficiencies in your verbal comprehension and working memory.
47Using a test called HCR-20, Dr Cunningham assessed your risk of violent at moderate to high, with that risk rising to high if you are abusing drugs.
48Dr Cunningham diagnosed you as suffering from a post-traumatic stress disorder. The factors underpinning the diagnosis were[3]:
In meeting the criteria for Post Traumatic Stress Disorder, Mr Pennington was exposed to physical and sexual abuse during childhood. He presents with a history of abuse from authority figures that contributes to his paranoia and mistrust of authority. He presents with distressing recollections of prior trauma. He presents with negative alterations in cognitions and mood in the form of feelings of worthlessness and depression. He presents with marked arousal in the form of sleep disturbance, irritability and outbursts of anger, hypervigilance, difficulty concentrating and reckless and self-destructive behaviour.
[3] At p4.
49Dr Cunningham's assessment of the interaction of your mental state and this offending is[4]:
In my opinion, Mr Pennington’s Post Traumatic Stress Disorder stems from his history of childhood physical and sexual abuse. Mr Pennington’s abuse from authority figures has led to an antisocial mindset and significant paranoia. His abuse of drugs as a form of escape has aggravated his underlying antisocial and paranoid tendencies. He can experience periods of psychosis whilst drug affected. He was abusing drugs during the period of his offending. Mr Pennington’s drug abuse is the main contributor to his offence behaviour. Mr Pennington may have been able to rationalise his behaviour and choose better options were he not intoxicated. In my opinion, Mr Pennington’s unresolved trauma contributed to his offence behaviour. Mr Pennington’s trauma contributes to his reckless, self-destructive and paranoid behaviour whilst intoxicated. Mr Pennington’s risk is increased significantly due to the combination of trauma and drug abuse.
[4] At p5.
50Dr Cunningham expressed concern about the effect of further imprisonment upon you[5]:
In my opinion, ongoing imprisonment will further aggravate his Post Traumatic Stress Disorder and further erode independent living skills. Exposure to further violence in prison and the threat of violence would aggravate his hypervigilance. He is increasingly vulnerable due to his current injury.
[5] Ibid.
51There is, however, no reliance upon the principles in R v Verdins[6]. These views of Dr Cunningham, which I accept, are part of the broader considerations of sentencing.
[6] (2007) 16 VR 269.
Discussion
52Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed:
(a) (to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other people from committing offences of the same or a similar character;
(c) to establish conditions of in which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and
(e) to protect the community from the offender.
53Each of those purposes is engaged in your case.
54Section 5(2) of the Sentencing Act sets out matters which are to be taken into account where relevant.
Maximum Penalties
55For the offences contained in the indictment, the maximum penalties for the charges are:
(a) aggravated reckless exposure of police officer risk by driving - a fine of 1200 penalty units or 10 years' imprisonment;
(b) damaging an emergency service vehicles worker - a fine of 600 penalty units or five years' imprisonment;
(c) theft of a motor vehicle - a fine of 1,200 penalty units or 10 years' imprisonment;
(d) dangerous driving while pursued by police - three years' imprisonment;
(e) assaulting an emergency worker on duty - a fine of 600 penalty units or imprisonment for five years;
(f) resisting an emergency worker on duty - a fine of 600 penalty units or five years' imprisonment;
(g) retention of stolen goods - a fine of 1,800 penalty units or 15 years' imprisonment; and
(h) possession of cannabis - five penalty units if I am satisfied of the requirements under s73(1)(a) of the Drugs, Poisons and Controlled Substances Act 1981, and I am so satisfied.
56For the related summary offences, the maximum penalties are:
(i)failing to stop a vehicle on police request - a fine of 60 penalty units or six months' imprisonment;
(ii)drive while disqualified - a fine of 240 penalty units or two years' imprisonment;
(iii)committing an indictable offence while on bail - a fine of 30 penalty units or three months' imprisonment;
(iv)fail to appear in accordance with your bail - a fine of 240 penalty units or two years' imprisonment;
(v)dangerous driving - a fine of 240 penalty units or two years' imprisonment;
(vi)fail to stop on police request - a fine of 120 penalty units or 12 months' imprisonment;
(vii)careless driving - a fine of 12 penalty units for a first offence;
(viii)using an unregistered motor vehicle - a fine of 50 penalty units for a subsequent offence; and
(ix)driving under the influence: relevantly, a fine of 180 penalty units or 18 months' imprisonment.
Gravity
57In examining the nature and gravity of your offending, it must be noted a number of the indictable and summary offences are 'rolled-up' charges. Charges 2, 3 and 6 on the indictment and summary Charges 7 and 14 are such charges. With Charges 2, 3 and 6, each charge contains more than one occasion of the same offence. Charge 2 contains two occasions, Charge 3 two occasions, and Charge 6 three occasions.
58A 'rolled-up' charge can only be laid with your consent and then only if you are pleading guilty. For you, it has the benefit of facing only one charge rather than, for instance, the circumstances of Charge 2, where three charges could have been laid instead of one. If three charges had been laid, then you might have received sentences exceeding the maximum penalty of one charge. In that case that would not have happened, but dealing with one charge instead of three makes my task simpler.
59The charges encompass offending on two separate days. On the second occasion, you drove a stolen motor vehicle. This is the circumstance of aggravation for the charge of aggravated reckless exposure of police officers to risk by driving. On the second occasion, you were on bail. A central condition of a grant of bail is not to reoffend while on bail. Parliament has taken over the consequences of offending on bail by enacting s16(3C) of The Sentencing Act.
60On both occasions you were a disqualified driver. That is, you should not have been driving at all and you should not have driven the vehicle you drove, as it was unregistered. On that second occasion, you were so affected by methylamphetamine you could not be interviewed by the police. It was an oral fluid test which revealed the presence of the drug.
61You sought to avoid an obvious attempt by the police to apprehend you. Each incident was protracted. You drove through residential areas not far from pedestrians. On several occasions you disobeyed red lights and drove on the incorrect side of the road. There was a moderate to heavy traffic presence at some points of your journeys.
62On one occasion you drove at high speed to escape the police even though both tyres were deflating. Your driving caused other drivers to evade you for fear of an accident. You did not evade them. Fortunately no one was injured but that was not due to any of your actions. Even though no one was injured, the level of risk of injury was high. Both the stolen vehicle and two police vehicles were damaged significantly.
63In their own right, your offending on both occasions was significant. The Court of Appeal discourages categorising offending in more precise terms of seriousness. Nevertheless, the above considerations are captured in the charges to which you have pleaded guilty. The penalties for some of the offences are structured to protect, in this case, members of the police force that were simply carrying out their duties. A striking example is s16(3D) of The Sentencing Act.
Section 16(3D)
64Section 16(3D) and s16(3C) of The Sentencing Act make inroads to the principle of totality and I will discuss that a bit later.
65In your case, the effect of s16(3D) is for every sentence of imprisonment for the offences contained in Charges 2 and 3 on the indictment, unless I direct otherwise, must be served cumulatively on any uncompleted sentence or sentence of imprisonment imposed on you today.
66Section 16(3C) provides for the same effect in offences committed while you are on bail.
67You are also the subject of a community correction order at the time. The Sentencing Act does not make a special provision for that circumstance, probably because your offending exposes you to the charge of an offence and the possibility of resentencing on the charges are a subject of the order. Despite that, it is an aggravating factor of your offending because one of the core terms of a community correction order is that you must not commit an offence punishable by imprisonment during the period of the order. You committed several.
68That the aggravated reckless exposure offence is a Category 2 offence under The Sentencing Act is of little moment practically in your case for no one submits a disposition other than imprisonment for the charge is appropriate.
69The duration of that offence was short, but for these types of escape that is often the case. Escaping from the police in a motor vehicle is inherently risky. Your actions were deliberate for you. There were two occasions of such driving encompassed in Charge 2, intensifying the seriousness.
70In 2017, this was offence was introduced to add to the protection of emergency workers, including police members, where they are simply carrying out their duties of aiding or protecting the community. General deterrence and denunciation are important sentencing considerations.
71I have summarised the impact statements of the two police officers. Your offending has affected each significantly. This serves to intensify the gravity of your offending insofar as it relates to the offences concerning them.
Moral Culpability
72The question of your moral culpability or responsibility for the offending must be seen in the light of the Bugmy considerations. Absent those considerations your culpability was high. You offended while drug-affected using a stolen motor vehicle while unlicenced, while on bail and subject to a community correction order.
73As to your moral responsibility your counsel submits the factor identified by the High Court in Bugmy v R[7] applies in your case.
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way…
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding the person has a long history of offending…
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision.
[7] [2013] HCA 37 at [40], [43] and [44].
74In this same paragraph, the Court noted the conflicting purposes of punishment may mean a deprived background does not have the same or any mitigatory effect in relation to other purposes of sentencing.
75Your early life was appalling. You were exposed to excessive drinking of alcohol as your parents were alcoholics. You were subject to physical violence because your father was physically violent to you, whether he was sober or not.
76As I said earlier, it is unsurprising you spent much of your childhood in foster care or youth justice facilities. Even the foster care was unstable in the sense that you were placed in more than one foster care environment. There was a transition, as I said, from foster care to residential care to youth detention and ultimately prison.
77Your lack of upbringing destined you to fail and fail you did. These matters reduce your moral responsibility. But they bring to the forefront specific deterrence and the protection of the community from you.
Guilty Pleas
78In relation to the charges, in terms of the timing of your pleas of guilty, they were indicated two days before a committal hearing and after the provision of additional statements and body-worn camera footage. The prosecution concedes the indication, and the entry of guilty pleas were at the earliest reasonable opportunity.
79By pleading guilty to the charges, you have saved the time and the expense of a trial. You have allowed other trials to be listed earlier than would otherwise be the case. You have spared witnesses the burden of giving evidence in a trial. Giving evidence is not easy. I dare say the two police officers who made impact statements would not relish the prospect of giving evidence and reliving the traumatic events involving them.
80At the present time pleas of guilty deserve a greater discount on sentence. Why this is so is explained in the case of Worboyes v R[8], where the Court said:
As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.
[8] [2021] VSCA 169 at [35].
81The continuing relevance of Worboyes has been recently stated in Surtes v R[9].
[9] [2023] VSCA 42.
82Your pleas of guilty give evidence of your remorse for the offending. Overall they entitle you to a significant discount on the sentence which would otherwise have been imposed if you had pleaded not guilty but had been found guilty.
COVID
83Your time in custody has been more difficult than in normal times through the restrictions caused by the pandemic. However, as your counsel pointed out, you are entitled to time deducted from your sentence through an administrative system called 'emergency management day'. This is a form of compensation for the disruption or deprivation due to unforeseen and special circumstances.
84Plainly, the pandemic is such a circumstance. Whether you are entitled and, if so, to what extent remains to be seen. Accordingly, I will give weight to what is known. Namely, the disruption and the deprivation and disregard the issue of emergency management days.
85There is another aspect to your time in custody. The circumstances of your arrest led to an aggravation of the pre-existing condition of your lower back and neck. I have seen a video of that arrest. Although I would not attribute any blame to the police members in the way they arrested you, it nonetheless has aggravated those pre-existing conditions.
86The effect of the aggravation persists. Its most notable effect is the referred pain into your left leg from your back. This has resulted in your need to use a walking stick. This limits your ability to exercise and I note you have gained a considerable amount of weight in custody. The pain and associated disability has intensified the difficulty you experience in custody.
Prospects of Rehabilitation
87On your release from custody you intend to live with Kylie Cormack. You have completed various courses and programs while in custody, which is encouraging. Dr Cunningham assesses you as a moderate to high risk of violent reoffending and a high risk if you are abusing drugs. You have a longstanding addiction to substances. It has been interrupted while you have been in prison.
88I accept you are remorseful. My sentences will be the longest ever imposed on you. One would expect they would have a deterrent effect and possibly put you on the path for rehabilitation.
89Nevertheless, your prospects of rehabilitation are uncertain.
Totality Principle
90There is a principle in law called the principle of totality. Where a court sentences a person on multiple offences the overall sentence must be a just and appropriate measure of the total criminality involved[10].
[10] Crawford v R [2018] VSCA 113 at [89].
91I have already mentioned the effect of s16(3C) and s16(3D) of The Sentencing Act. They have weakened the effect of the totality principle. It remains, although, the landscape of sentencing for these offences has altered. What is a just and appropriate sentence has been changed and I must give appropriate effect to that change in my sentencing.
Current Sentencing Practices
92Counsel for the Director summarised three sentencing appeals in the Court of Appeal[11]. In Nelson's case the Court considered a sentence of three years' imprisonment as moderate in the circumstances of the case. It noted an appalling driving history does not make the offence more serious, but for sentencing purpose of community protection, denunciation and deterrence weigh more heavily[12].
[11] Nelson v R [2020] VSCA 219; Hutchison v R [2021] VSCA 235; and Smith v R [2020] VSCA 165.
[12] At [43].
93In other cases the term of imprisonment imposed on the charge of aggravating recklessly placing emergency workers at risk were three years, two years, and two months. The sentence of two months was upheld because of the accused's intellectual impairment, otherwise, the court would have considered it derisory.
94I have examined five relatively recent sentencing decisions of judges of this court for the aggravated offence[13]. The sentences were between 335 days and 18 months' imprisonment.
[13] DPP v Bullard [2020] VCC 243; R v Sutherland [2021] VCC 200; DPP v Rule [2021] VCC 234; DPP v Meldrum [2021] VCC 1734; DPP v Jackson [2021] VCC 1659.
95Your counsel submitted I should impose a combined sentence. I am not prepared to do that. One part of a combined sentence is a community correction order. Looking at your criminal history I am not satisfied you would be able to complete the conditions and terms of a community correction order. Apart from the core conditions, the likely terms of such an order would be beyond your capacity to comply with.
Sentence
96On Charge 1, the charge of theft of a motor vehicle, I sentence you to 12 months' imprisonment.
97On Charge 2, a charge of aggravated offence of recklessly exposing an emergency worker to risk by driving, I sentence you to 15 months' imprisonment.
98On Charge 3, a charge of damaging an emergency service vehicle, I sentence you to nine months' imprisonment.
99On Charge 4, a charge of dangerous driving while pursued by police, I sentence you to six months' imprisonment.
100On Charge 5, a charge of assaulting an emergency worker, being the female police member, I sentence you to nine months' imprisonment.
101On Charge 6, a charge of resisting an emergency worker, being three police members including the female police member, I sentence you to nine months' imprisonment.
102On Charge 7, a charge of possession of a drug of dependence I convict and discharge you.
103On Charge 8, a charge of handling stolen goods, I sentence you to three months' imprisonment.
104On Summary Charge 5, driving after given a direction to stop, I sentence you to 21 days' imprisonment.
105On Summary Charge 7, driving while disqualified, I sentence you to four months' imprisonment.
106On Summary Charge 14, a charge of committing an indictable offence on bail, I sentence you to one month of imprisonment.
107On Summary 21, a charge of failing to answer bail, I sentence you to one month of imprisonment.
108On Summary Charge 22, a charge of dangerous driving on January 2022, I sentence you to three months' imprisonment.
109On Summary Charge 24, a charge of driving after given a direction to stop, I sentence you to 21 days of imprisonment.
110On Summary Charge 26, a charge of careless driving or driving carelessly, you are convicted and discharged.
111On Summary Charge 27, a charge of using an unregistered motor vehicle you are convicted and discharged.
112On Summary Charge 31, a charge of driving under the influence of a drug, you are sentenced to one months of imprisonment.
113In view of these sentences of imprisonment, it would serve no useful purpose in fining you for the offences where a fine is, in effect, the maximum penalty.
114The base sentence is the sentence on Charge 2. Six months of the sentence on Charge 1; three months of the sentences on Charges 3, 5, and 6; two months of the sentence on Summary Charge 14 are to be served cumulatively upon themselves and the base sentence. The other sentences of imprisonment are to be served concurrently with themselves and the above sentence. The total effective sentence is 31 months' imprisonment.
115I will set a non-parole period of 20 months' imprisonment.
116Excluding today, you have been on remand for 462 days. I declare those days as time served under my sentences as today.
Licence
117The charge of aggravated reckless exposure upon the police to risk by driving is classified as a 'serious motor vehicle offence' and requires the cancellation of any licence or permit that you hold to drive a motor vehicle, and your disqualification for at least 24 months from obtaining such a licence or permit.
118On that charge, any licence or permit you hold to drive a motor vehicle is cancelled and you are disqualified from holding another licence or permit for 24 months from today. I have kept the period of disqualification to a minimum, bearing in mind the other penalty imposed for this offence.
119For Charges 1 and 4 on the indictment and Summary Charges 22 and 31 the prosecution seeks a cancellation to disqualification. On each, except Charge 31, I will cancel any licence or permit you hold to drive a motor vehicle and disqualify you for a period of 12 months. On Charge 31, the same order except the period of disqualification is 48 months. All periods of disqualification start today.
120The prosecution seek a finding under s89C(1) of The Sentencing Act. I find that the offence in Summary Charge 31 was committed while you were under the influence of a drug which contributed to your offending. I will make such a finding.
Section 6AAA
121If you had not pleaded guilty to these charges but were found guilty after a trial, I would have sentenced you to a total effective sentence of 46 months' imprisonment.
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